Full opinion text
OPINION CONBOY, District Judge: In the early 1980s hard times fell upon the American maritime shipping industry. The international market for such services was being increasingly dominated by foreign carriers, principally, it was thought, because labor costs on American vessels made them noncompetitive. In such circumstances, the shipping companies and unions sometimes found themselves in common distress at the prospective loss of contracts and jobs. In extreme circumstances, imminent bankruptcy of the company spurred the union to agree to drastic reductions in the wages and benefits of its members in order to avert the dual disaster of company collapse and discharge of ships’ crews. The matter before the court is such a case. The plaintiff shipper told its unions, including the defendant, that a contract it had with the Navy to manage nine Sealift vessels would not be renewed routinely by the Navy. To secure the renewal, the plaintiff determined that it must offer to the Navy a substantial reduction in labor costs. The defendant union orally agreed to the reductions for a two year period, thereby protecting the jobs of the deck officers on those nine ships, and the shipper consequently managed to secure its contract with the Navy for another two years. At a subsequent date during this two year term, the Master Collective Bargaining Agreement between the shipper and the union, covering all of the shipper’s vessels, including the nine Sealift vessels, was by its terms scheduled to expire unless renewed. The shipper declined to negotiate a renewal, and later signed a new collective bargaining agreement with a rival union. On the final day of the Master Collective Bargaining Agreement, the shipper sent a letter to all deck officers on its vessels, including the nine Sealift ships, and advised them that the defendant union was no longer their bargaining agent, and set forth unilateral terms and conditions for continued employment. The central issue remaining in the trial of this case is whether the oral “Sealift Agreement” modified and extended the “Master Agreement,” with respect to the Sealift vessels, as the defendant union contends, or whether the Sealift Agreement merely incorporated necessary terms of the Master Agreement and existed independent of it, as the shipper contends. On this critical question, it should be noted at the outset that a written draft of the oral Seal-ift Agreement does not explicitly incorporate the Master Agreement, but does explicitly refer to certain of its clauses. The plaintiff, Marine Transport Lines, Inc. (“MTL” or the “Employer”) instituted this action for a declaratory judgment that its collective bargaining agreement with the defendant, International Organization of Masters, Mates, & Pilots, AFL-CIO (“MMP” or the “Union”), terminated at midnight June 15, 1984. In an Opinion filed June 6, 1986, the late Honorable Edward Weinfeld, U.S.D.J., granted MTL summary judgment declaring that the collective bargaining agreement between the parties (the “Master Agreement”) expired according to its terms on June 15, 1984. See Marine Transp. Lines v. International Org. of Masters, Mates, & Pilots, 636 F.Supp. 384, 389 (S.D.N.Y.1986). Judge Weinfeld also granted summary judgment to MTL dismissing the Union’s first counterclaim, that the Master Agreement was extended for all purposes by its terms, see id., summary judgment dismissing the Union’s third counterclaim, that the Union may recover for breach of the Master Agreement on a theory of promissory es-toppel, see id. at 391, and judgment on the pleadings dismissing the Union’s fourth counterclaim, based on a theory of tortious interference with contract. See id. at 392. Judge Weinfeld refused to grant summary judgment on the Union’s second counterclaim. See id. at 390. The second counterclaim involves the oral agreement entered into between the parties, called the “Sealift Agreement.” See id. at 386. During the effective period of the Master Agreement, in the fall of 1982, MTL requested wage and benefit concessions by Union members working aboard nine vessels operated by MTL under contract with the United States Navy’s Marine [sic] Sealift Command. MTL told the Union that the Navy would not renew its contract with MTL unless the Union agreed to the requested labor cost reductions. Id. This court conducted a bench trial of the Union’s second counterclaim over eight trial days, from June 20, 1988 to July 1, 1988. This Opinion constitutes the court’s findings of fact and conclusions of law, pursuant to Fed.R.Civ.P. 52. Pursuant to an Order filed December 22, 1986, on the consent of the parties, the court must decide whether the Sealift Agreement extended the entire Master Agreement (as modified by the oral agreement) between June 16, 1984 and May 7, 1985 with respect to the Sealift vessels. If the court decides that question in the Union’s favor, all remaining issues (breaches, defenses, remedies) will be submitted to arbitration. If the court decides the initial question in the Employer’s favor, the court will decide what breaches of the Sealift Agreement, if any, MTL committed between June 16, 1984 and May 7, 1985. In this latter event, the court will decide also whether MTL has any defenses to any breaches found. The issue of remedies, if appropriate, will be submitted to arbitration. On this question, if reached, the court will determine merely the period between June 16, 1984 and May 7, 1985 for which remedies are appropriate. BACKGROUND A. The Original Navy Contract “The Union ... represents supervisory personnel, who are not covered by the National Labor Relations Act’s guarantee of the right to collective bargaining.” Marine Transp. Lines, 636 F.Supp. at 388 (citing, inter alia, 29 U.S.C. §§ 152(3), 152(11), & 164(a)). Nevertheless, the Union, which predates the National Labor Relations Act, has had collective bargaining agreements, the Master Agreements, with a substantial number of employers, including MTL, for many years. Although it is unclear when the parties first made a labor agreement, MTL and the Union had had a Master Agreement at least as far back as the middle of the 1960s. MTL and the Union entered into a Master Agreement to run from June 16, 1972 to midnight June 15, 1975. Thereafter, MTL and the Union renewed the Master Agreement in 1975, in 1978, and in 1981. Each renewal covered a three-year period. During the course of the ’72-’75 Master Agreement, MTL learned of the opportunity to bid on a contract to manage a group of nine vessels, the Sealift vessels, for the United States Navy. However, a major impediment existed to MTL’s ability to bid on the contract being offered by the Navy. Specifically, in 1965, the Union had struck, seeking employment for a fifth deck officer per ship. At the time, each ship was manned by four MMP members (as well as employees of other unions). The Union won this concession, and all MTL ships were carrying five MMP members in 1974. To secure the contract for the Sealift vessels, MTL had to get MMP to agree to a cap of four Union members per ship. MTL approached the Union. The Union recognized that accommodation was necessary, for it no longer enjoyed the virtual monopoly position that it had enjoyed for almost one hundred years. See Trial Transcript at 177-78. The Union agreed to modify the Master Agreement, as it applied to the Sealift vessels, so that MTL could bid on the Sealift vessels, or tankers, in accordance with the Navy’s terms. MTL won the contract, and in 1974, entered into a five-year contract with the Navy (the “Navy Contract”) to manage the Sealift tankers. MTL routinely submitted to the Navy a document referred to as “Schedule A,” the principal device to identify and control labor costs on the vessels, for which the Navy would be billed. Schedule A enumerates the various items calculated to establish the bulk, if not all, of the Contractor’s reimbursable labor costs, what the Navy refers to as “total wages,” see Defendant Exhibit 15 at Art. 31(b): Non-Watch Allowance, Basic Monthly Wage, Overtime, Pension & Welfare, Vacation, Training Program, Feinberg Award, and Payroll Taxes. In other words, the usage of Schedule A by the parties to the Navy Contract established each of the enumerated labor cost items as components of the single contract construct, “total wages.” The manning concession made by the Union (four Union members instead of five) continued in force on board the Sealift tankers through the 1975-78 and 1978-81 Master Agreements. The court notes parenthetically that MTL secured an extension of the original Navy Contract for two years, from 1979 to 1981. Whenever the Master Agreement created different labor costs, whether wages or fringe benefits, MTL submitted a revised Schedule A to the Navy. See, e.g., Dx 82 (Letter from J.P. Hale, MTL Contract Specialist to Commander, MSC (May 6, 1982)) & Dx 33 (Letter from F.T. Hayden, MSC Director, Chartering and Contract Operating Div. to MTL (undated)); Tr. 963-64 (testimony of James H. Rand, MTL President) (“It was MTL’s practice, if not the — a requirement of the contract, to provide Military Sealift Command with a revised schedule or a new Schedule A-l or A-2 each time there was a material change in our costs. And when I say material change, I’m thinking most keenly of a new contract with our labor unions. Those contracts required approval by the Navy.”); Dx 15 at Art. 6(k) (“All renewals or modifications of labor agreements negotiated by the Contractor covering the operation of the tankers under this Contract shall be submitted for approval by the Government before the same shall be binding on the Government.”). MTL was awarded, without competitive bidding, two two-year extensions of the Navy Contract, running from May 7, 1979 to midnight May 6, 1981, and from May 7, 1981 to midnight May 6, 1983. B. The 1982 Initial Discussions With MMP In the early years of the 1980s, as has been noted, the American maritime industry found itself sailing upon turbulent economic waters. By 1982, according to the United States Navy, the American flag maritime industry faced an “extreme recession.” Dx 14 at para. 3(b); see also Dx 45 (telex from MTL to all MTL vessels (June 15, 1984)) at 1-2 (“[T]he U.S. flag shipping industry has experienced a prolonged depression.”). This woeful state of affairs created a strong buyer’s market, reflected in various requests for proposals (“RFP”), or solicitations for contract bids, that the Navy issued in 1982. MTL bid unsuccessfully on two “major” ship procurement programs, as well as a third Navy contract, during the summer of 1982. See Dx 41 at 2 (Letter from James H. Rand to MMP (Jan. 7, 1983)). MTL “bec[a]me aware” that a union with which it did not contract “made substantial concessions to the companies with which it has collective bargaining agreements.... These concessions, which were applicable to both [sic] deck, engineering and radio officers, had the effect of reducing charter hire [costs] to the Navy by thousands of dollars per day.” Id. In fact, in 1982 the Navy awarded contracts to ships having contracts with the MMP only because the United States Government faced “substantial prospective losses” if the Navy awarded those contracts to others. See id. MTL believed that the Navy would not routinely renew its Navy Contract in 1983, but would instead put it up for competitive bidding, and indeed, it learned that the Navy intended to issue an RFP for the Sealift tankers contract, the Navy Contract. MTL knew that it could not be the successful bidder without reducing its labor costs. MTL expressed grave concern about the potential loss of the Navy Contract. “In ordinary times, the loss of this business would be hard for MTL to bear and might well result in the financial insolvency of MTL.” Id. Loss of the Navy Contract would “reduce MTL’s operating cash flow of [sic] 40-50%.” Px 30 at 2 (Memorandum from James H. Rand to file (Dec. 2, 1982)). In addition, MTL faced “special circumstances” during 1982. See Dx 41 at 2. Loss of the Navy Contract most likely would have caused a commercial lender, Irving Trust Company (coincidentally the trustee of a partnership owning the Sealift tankers, see Dx 14 at para. 2(a)), to refuse to lend ten million dollars to MTL to assist MTL to acquire a United States flag bulk-carrier named the “Marine Princess.” See Dx 41 at 3; Px 30 at 2. In turn, MTL would lose fifteen million dollars that another lender was prepared to make available, see Dx 41 at 3, and thus would be unable to purchase the ship. Additionally, MTL’s corporate parent, GATX Corporation, which had announced on June 28, 1982 that it would “distribute the stock of MTL to the GATX shareholders at or near the end of 1982,” would not “spin off” MTL. See id. at 2-3. Instead, GATX “would proceed to liquidate MTL’s assets promptly.” Id. at 3; see id. at 2. GATX was determined “to withdraw from the ocean shipping industry.” Id. at 2. “[T]he non-extension of the Navy Contract would have had a catastrophic effect upon [MTL].” Dx 42 (draft Memorandum of Sealift Agreement accompanying June 6, 1983 letter from Thomas E. Murphy, MTL Manager, Marine Personnel Div. to Captain Robert J. Lowen, International President, MMP) (emphasis added). MTL concluded that it needed to reduce Schedule A’s total wages by approximately three thousand dollars per day in order for the Navy to routinely renew the Navy Contract without resorting to the RFP process. Before MTL could present a reduced Schedule A to the Navy, it of course needed to secure concessions from the four unions supplying manpower to the Sealift tankers. Thomas Murphy, at the time MTL’s “manager of the Marine Personnel Department,” Tr. 555, was responsible for the Employer’s collective bargaining. See id. Murphy determined that four steps were necessary if MTL was to achieve the necessary labor cost savings: wages must be “rolled back” to their level of June 16, 1981, and remain at that level through the duration of the upcoming extension; a certain allowance contained in the Master Agreement, called the “diesel and automation allowance,” must be inapplicable to the Sealift tankers; vacation entitlements must be cut drastically (from 30 to 13 days for each 30 days of employment for ship “Masters,” or captains, and from 27 or 26 days to 13 days for each 30 days of employment for other MMP members (collectively the “licensed deck officers,” or “L.D.O.s”), see Dx 43 at § XXVIII(l)(b) (1981-’84 Master Agreement)); and necessary job-related travel must be made by economy class, rather than first class. See Tr. 557-58. These reductions, by themselves and through their “rippling effect” on wage-driven benefits, such as pension and the Feinberg Award, would allow MTL to remain competitive for the Navy Contract. Having already met with representatives of one of the other three unions providing manpower for the Sealift tankers, Murphy called on Captain Robert Lowen, International President of MMP, in the early fall of 1982. Lowen understood that MTL wanted, in effect, to wipe out the aggregate compounded wage increase of 271/2% since June, 1981 and cancel the lxh% increase anticipated for the following June. Additionally, cost of living increases due would be eliminated. See Tr. 197-98. Capt. Low-en characterized the wage reductions aptly as “brutal, brutal hits,” id. at 198, “almost unbelievable hits.” Id. Lowen was concerned also that the reduction in vacation days would be extremely problematic, because it tied in to credit towards pension. See id. at 199. Murphy, however, told Lowen of MTL’s lack of success earlier that year on other Navy contracts, and grimly warned Lowen that MMP either swallowed very, very hard, extended the contract for two years by amending at least the provisions that [MTL] w[as] worried about, and we had the jobs for two more years. Or, he said, [MTL and MMP] take the chance of putting [the 1983-85 extension of the Navy Contract] out to bid and we know that whatever [the cost] is now, it’s going to end up less, and [MMP] do[es]n’t have the assurance of the jobs. Tr. 203-04. Lowen, Murphy, and possibly others had more discussions about these proposals during the month of October. See Tr. 205. An important face-to-face meeting occurred subsequently, on November 15, 1982, see Tr. 671; id. at 997, at MMP’s headquarters. Lowen, Murphy, James Rand, MTL’s President, and Allan Scott, MMP’s Vice President, attended this meeting. See Tr. 205. The parties discussed MTL’s proposals, “which in affect [sic] w[ould] amend the [Master Agreement] so that we could remove the Sealift ships for a period of two years, and lock them up, so that they would not be touched," according to Captain Low-en. Tr. 206. Lowen apparently was shown a copy of a letter MTL had submitted to the Navy on November 12, in which MTL falsely stated that it already had its unions’ agreement to wage concessions, see supra note 5, and offered to hold Schedule A “firm for the option period 1983-1985.” See Dx 2 (Letter from H.A. Downing, MTL Executive Vice President, to Admiral K.J. Carroll, Military Sealift Command (Nov. 12, 1982)). Lowen asked whether the escalation provision of the original Navy Contract would apply. One of MTL’s representatives told him it would not. See Tr. 346 (quoting Lowen deposition testimony). This meant that MTL would not be able to submit revised Schedules A to the Navy during the 1983-85 option period for the Navy Contract. MTL would continue to recapture actual costs above the Contract Price through escalation, but the amount recoverable through the escalation provision of the Navy Contract would be frozen. See generally discussion infra at 20-28. Lowen told Rand and Murphy that he found this “hard to believe.” See id. at 347 (quoting Lowen deposition testimony). Nevertheless, at the end of this meeting MMP agreed to accept MTL’s proposals. MMP did, however, manage to extract one concession from MTL. MMP, as well as the other unions, apparently, negotiated the right to shift costs around, to make “future changes in the various benefits as [MMP] may desire so long as the total compensation remains unaffected.” Dx 6 at 2 (Letter from James H. Rand to Commander, Military Sealift Command (Nov. 22, 1982)). The parties did not execute a writing to reflect their agreement. C. MTL’s Negotiations With the Navy At the same time MTL was obtaining its unions’ agreements to the concessions set forth above, it was engaged in discussions with the Navy regarding the 1983-85 extension of the Navy Contract. As early as August 12, 1982, Rand discussed the extension of the Navy Contract with MSC officials. See Rand Dep. 51-52. In a letter dated October 26, 1982, MTL stated to the Navy its belief “that the Navy té considering putting the [Navy] [C]ontract out for bid in the near future.” Dx 1 (Letter from H.A. Downing to Commander, Military Sealift Command (Oct. 26, 1982)). MTL asked the Navy to consider the proposal included in the letter before putting the contract out for bid. See id. The letter included two offers by MTL. First, MTL submitted a handwritten revised Schedule A which reflected the concessions it was in the process of obtaining from its unions. The letter stated: “The changes in Schedule A (total wages) represented by these concessions (almost 35% of the total wages) reduces the operating costs by almost $1 million per Vessel per year as compared with our present Schedule A.” Id. Michael C. Berkowitz, the composer of the October 26 letter, see Tr. 1114, then MTL’s general counsel, see id. at 1112, asserted at the trial that he used the term “total wages” to “refer specifically to the Schedule A total wages from the [Navy] [C]ontract and so I used the term together with the Schedule A in the parenthesis to indicate that I was specifically referring to the Navy [C]ontract and that very limited definition, specific definition set forth I think in Article 31” of the Navy Contract. Tr. 1119. The “very limited,” “specific” definition that Berkowitz referred to reads, in relevant part: [T]he term “total wages” includes but is not limited to basic wages, pension and welfare costs, vacation pay, and any other fringe benefits or other payments, paid as a result of collective bargaining agreements, and overtime at the agreed percentage of 120% of base wages for licensed officers, excluding Masters and Chief Engineers, and 100% of base wages for unlicensed personnel vice [sic] actual overtime for each department of the tanker, and related taxes, all as set forth in Schedule A. Dx 15 (Navy Contract) Art. 31(b)(i) (emphasis added). Second, MTL offered to restructure its contractual relationship with the Navy, proposing to incorporate into the Navy Contract some of the requirements the Navy had included in recent RFPs for other contracts. Tr. 1041. This second proposal “would have required a two party negotiation,” id. at 1041-42, which the Navy rejected because, due to time constraints, “any negotiations about revisions in the [Navy] [C]ontract might lend the appearance of a quid pro quo.” Id. at 1042. Still, the Navy expressed interest in MTL’s first proposal. See id. On November 12, 1982, Berkowitz and Captain Henry Downing, who was then an Executive Vice President of MTL, and MTL’s second-ranking operating officer behind Rand, see Rand Dep. 8, traveled to the offices of the Military Sealift Command in Washington, D.C., to meet with MSC officials. See Tr. 43. They delivered to the Navy, on MTL’s behalf, a letter from Capt. Downing in which MTL waived the ninety-day notice period contained in Article 4(b) of the Navy Contract. See Dx 2 at 1; Dx 14 at Reference (A). MTL did this because the Navy was required to give [MTL] a 90-day notice if they were going to put out a new RFP and our concern was that that requirement would force them to go ahead and put out a new RFP without having time to fully evaluate our offer to renew the contract under the conditions that we were offering them. Tr. 45. Although notice would have been due to MTL by February 7, 1983, see Dx 14 at Reference (A), receipt of the November 12 letter waiving notice apparently encouraged the Navy to move up the time when it would put out a RFP, because MTL later operated under the belief that the Navy would proceed to put out the RFP on December 1, 1982. See Tr. 216; id. at 593-94; id. at 676. In any event, there is no dispute that MTL was operating under severe time pressure, both from the Navy and from GATX. Downing’s impression of the November 12 meeting was that the Navy was “willing to continue the discussion” of MTL’s proposal. Tr. 44. Because MTL had to act quickly, Downing and Berkowitz went immediately to counsel’s offices at the conclusion of the meeting. See Tr. 1119-20. Berkowitz either wrote out “in longhand,” or “dictated,” see Tr. 1119-20, a letter to Admiral Carroll thanking MSC for the meeting. See Dx 2 at 1. Attached to the letter were two different typewritten proposed Schedules A. See id. (attachments). The letter advised MSC: “Both sets of figures [on the proposed Schedules A] are firm for the option period 1983-1985, and we have our unions’ agreement for the lower wages during the period.” Id. at 1. On the following Monday, November 15, 1982, probably after meeting with Lowen, see discussion supra at 12-13, MTL sent MSC a telex in Capt. Downing’s name, though Downing “probably” did not author the telex. See Tr. 52-53 & Dx 5. The telex stated that MTL was “pleased to advise that Schedule A, delivered with our letter [dated] 12 November 1982, is firm through May 1985.” Dx 5. The same day James Rand sent another telex to MSC. This telex notified the Navy in writing of an extra benefit MTL would confer in order to retain the Navy Contract for the next two-year period, i.e., it would implement the new labor costs on January 1, 1983, rather than on May 7, 1983, when the 1983-85 extension would begin. See Dx 3 (“We are pleased to report to you that our unions have agreed that the prices reflected in our letter [dated] 12 Nov 82 and hand delivered to your office on that day shall be effective as from 01 Jan 1983.”). This was confirmed by letter the next day. See Dx 4 (Letter from J.H. Rand to Admiral K.J. Carroll (Nov. 16, 1982)). Finally, on November 22,1982, MTL sent MSC a letter, apparently authored solely by Rand, see Tr. 1063-64, with input from Murphy. See id. at 1064. The November 22 letter represented official notification, as required by Article 6(k) of the Navy Contract, that MTL had “amended [its] union contracts,” effective January 1, 1983. See Dx 6 at 1. The letter went on to list the modifications obtained, after which it stated: “All of the unions have agreed to hold total compensation levels firm through May 7, 1985, although we have agreed to such future changes in the various benefits as the unions may desire so long as the total compensation remains unaffected.” Dx 6 at 2. MTL did not send a copy of this letter to MMP. See Tr. 221-22. D. The Second Round of Talks With MMP After Lowen had agreed to MTL’s proposal at the November meeting at MMP headquarters, MMP began notifying members of the Offshore Advisory Council of the terms Lowen had agreed to. See Tr. 211. “[I]t became apparent very rapidly that there was going to be a lot of trouble.” Id. The entire MMP membership had recently approved a change in its rules, adopting what has been referred to as the “hardship rule.” That rule states, in relevant part: [T]he International President, in consultation with the Offshore Advisory Council [is provided] with ongoing authorization to amend or defer the wages, hours or working conditions of the Master Offshore Contract for a financially ailing company signatory thereto, and the ongoing authorization to amend the agreement with an individual company with contract terms other than those of the Master Offshore Contract for the specific purpose of staving off financial insolvency- The company’s financial hardship shall be proved to the satisfaction of the Organization prior to any amendment or deferral of contract terms. Any such amendment or deferral shall only be for a temporary period of time as determined by the President and any such amendment may be made with or without security and for other good and valuable considerations. Dx 53; see Tr. 184-85; id. at 214. The hardship rule provided the only authorization for the International President, in consultation with the Offshore Advisory Council, to amend a previously ratified contract. See Tr. 182-85. Members of the Offshore Advisory Council complained, correctly, that MMP had not received any written evidence to support MTL’s claim of hardship. See id. at 212-15. After speaking with counsel, see id. at 213, Capt. Lowen, on his way to his home in California for Thanksgiving, asked Lloyd Martin, MMP’s International Secretary-Treasurer, see Martin Dep. 5, to call MTL to tell them that Lowen believed he may have acted improperly in unilaterally, and without documentary support, agreeing to MTL’s proposals. See Tr. 213-14. Martin called Murphy the Wednesday before Thanksgiving, November 24. Murphy testified that Martin said he would see Lowen in San Francisco and would try to get written confirmation of MMP’s agreement, which MTL had to give to the Navy. See Tr. 676. The day after Thanksgiving, November 26, Martin called Murphy again. Id. Martin said he was having lunch with Lowen and that Lowen had asked Martin to call Murphy to say he could not go through with the deal. Id. Murphy was “shocked, surprised.” Id. Martin said Lowen would not speak to Murphy directly. See id. Murphy called Rand to inform him of this turn of events. See id. at 977. Rand spoke with Lowen on the telephone. See Tr. 215-16; id. at 978. Rand “demanded a meeting.” Id. at 978. Rand “didn’t offer [Lowen] a chance to say very much.” Id. Rand “was willing to go anywhere to have the conversations,” and “proposed to come out to San Francisco and see [Lowen].” Id. at 979. The time pressures on MTL were great because MTL had been told by MSC that it should have written confirmation of the unions’ agreements to MSC by November 26. See Px 30 at 1. The meeting occurred Thanksgiving weekend, at the offices of MMP’s San Francisco local. Lowen, Martin, and Bill Larsen, MMP’s west coast Vice President, see Tr. 220, met Rand and Murphy. Martin later stated that Rand “was in a very high tension hyperventilation [sic] state of mind and almost to the point where we thought he might pass out from sheer excitement and tension.” Martin Dep. 82. Lowen described Rand’s presentation as “passionate].” See Tr. 220. Both Martin and Lowen agree Rand stated something to the effect that GATX would liquidate MTL if MTL did not secure the extension of the Navy Contract. See Tr. 217-18; Martin Dep. 82; see also Dx 41 (Letter from Rand to Lowen at 3 (Jan. 7, 1983)) (ultimate result of chain of consequences that would occur if MTL did not secure the extension of the Navy Contract would be that “GATX would proceed to liquidate MTL’s assets promptly”); cf. Tr. 979 (Rand testimony) (“I took the opportunity to bring [Lowen] up to date with my conversations with MTL’s sole shareholder and was able to share with him my own estimation of what the consequences, in a dim natural sort of sense, one thing leading to another, what the consequences might be on the company of Captain Lowen reneging on his agreement, we not getting the renewal on the [Navy] [C]ontract.”). After Lowen had discussed the matter with Martin and Larsen to satisfy himself that MTL qualified under MMP’s hardship rule, see Tr. 220, Murphy gave Lowen a draft of a letter, which had been composed either by Rand or Berkowitz, see id. at 593-94, that MTL needed to provide to MSC. See id. at 226. Murphy stated that MTL was “very anxious” to have Lowen provide this letter. Tr. 593. Lowen provided the letter, which stated that Lowen had reviewed MTL’s November 22 letter to MSC, and that the November 22 letter correctly summarized the amendments made to the Master Agreement, see Dx 39, typing it himself. See Tr. 226; discussion supra note 8. Lowen hand delivered the letter right there, because Rand and Murphy indicated “that they could not leave that office without hand carrying the letter.” Tr. 230. Furthermore, Rand agreed to provide MMP with a written explanation of the potentially disastrous consequences that MTL would likely suffer if it lost the Navy Contract. See Tr. 231. The letter was eventually provided. See Dx 41. E. The 1983-85 Navy Contract Extension Confirmed On November 29, 1982, two Navy contract specialists signed a memorandum for internal files on the subject of “Justification for Exercise of Third Option to extend Contract for Operation of the Sealift Class Tankers.” See generally Dx 14. The memorandum referred, inter alia, to MTL’s November 12 letter stating that “[b]oth sets of figures[, contained in Schedules A-l and A-2,] are firm for the option period 1983-1985.” See Dx 14 at para. 3(b). The memorandum stated: “[U]nder the revision of MTL’s Schedule A which is to become effective on 1 January 1983, total wages (including fringe benefits) will actually decrease by approximately 30 percent in comparison with the currently effective Schedule A.” Id. para. 3(b). After making various cost calculations and comparisons, see id. paras. 7-11, the memorandum concluded that “exercise of the [two-year] option [wa]s the most advantageous method of fulfilling the Government’s need” for the services the Sealift tankers provided. See id. para. 14. Specifically, because the figures on the new Schedule A would not change during the period of the extension, and the base “Contract Price” could “be estimated with a fair degree of certainty,” see Dx 14 at para. 3(a), the Navy calculated the two-year “per diem,” or total cost to the Navy, of the extension. See id. at para. 7. On December 1, 1982, Military Sealift Command sent MTL a telex notifying MTL of the Navy’s decision to exercise its third option for the Navy Contract, for the period May 7, 1983 to midnight May 6, 1985. See Dx 7. Rand sent a message to all the Sealift tankers the next day to detail the concessions. See Px 49 Ex. I at 4 (Telex from Lowen to Sealift Deck Officers (Dec. 24, 1982)). The Navy telex was followed by a letter dated December 9, 1982 from Vice Admiral Carroll. See Dx 8. The letter “serve[d] to confirm essential points of understanding and agreement regarding the Government’s acceptance of certain voluntary proposals recently submitted by MTL affecting manning and contract payments effective as of 1 January 1983.” Id. at 1. MSC accepted “the revision of Schedule A recently submitted by MTL marked and identified as ‘Exhibit A-2 for 1983-1985.’ ... It is understood this Revised Schedule A will remain firm from 1 January 1983 through May 1985.” Id. at 2. On December 22, 1982, Rand sent a letter to the Commander, Military Sealift Command, acknowledging receipt of Vice Admiral Carroll’s letter and agreeing to the Navy’s terms. See Dx 9. MTL specifically “thank[ed] MSC for its acceptance of revised Schedule A.” Id. at 2. F. The Foreign Articles Problem On Christmas Eve, 1982, Capt. Lowen sent a telex to all Sealift Deck Officers to explain the circumstances leading to, and to restate the particulars of, MMP’s concessions to MTL. See Px 49 Ex. I; Px 50. The telex urged all Masters that the terms and conditions under which officers and crew signed Articles should be adhered to until Articles are broken in a U.S. port. Upon voyage completion, or until the terms of the Articles run in the event of non-return in accordance with the relevant portions of the U.S. Code, [sic] If there is a dispute concerning overpayment by a Master, MTL and the Navy can argue out whether or not a Master can be ordered to violate a stature [sic] of the United States Code. Px 49 Ex. I at 4 (emphasis added). Capt. Lowen in substance said that it would be illegal for MTL to impose the wage reductions on those men working on board any of the Sealift tankers as of January 1, 1983. MTL soon recognized that, in its haste to secure the extension of the Navy Contract, it had agreed to reduce wage costs to the Navy as of January first, despite its obligation to pay current wages to the employees working under the “foreign articles,” to which Lowen had referred in his December 24 telex, for the duration of their then current voyages. On December 30, 1982, J.M. MacAulay, Fleet Director for the Seal-ift vessels, see Tr. 264-65, wrote MSC to advise MSC: “As some vessels are presently on foreign articles operating offshore, there will be some time delay for some vessels until their return to a U.S. port or when one year articles are terminated.” Dx 10 at 1 (Letter from J.M. MacAulay to Department of the Navy (Dec. 30, 1982)). MacAulay apparently had been given the task of persuading the Navy to absorb these labor costs, because he had played no role in negotiating the extension of the Navy Contract. See Tr. 300. The letter stated that crew members under foreign articles “will have legal rights to entitlements of existing pay scale, which will present some difficulties in instituting the new [Sjchedule [A] on 1 January 1983.” Dx 10 at 1. MTL predicted an average cost overrun “of approximately 4 months when wages of those existing crew members now on foreign articles will continue.” The letter ended with MTL asking the Navy to modify the Navy Contract: “Your understanding and agreement to the schedule we intend to follow with the Sealift vessels will be greatly appreciated.” Id. at 3. Admiral Carroll responded to MacAu-lay’s letter in a letter dated January 19, 1983. See Dx 11. He stated, in relevant part, that MTL notified MSC in previous correspondence, particularly your letter of November 22, 1982, that the effective date for the reduced wages identified in Exhibits A-l and A-2 for 1983-1985 attached to your letter of November 12, 1982 would be 1 January 1983. The option to extend the contract period for an additional two years was predicated on this understanding. As MSC has historically paid all wage increases in accordance with Article 31, Escalation, on the effective date stated in existing collective bargaining agreements, we do not agree with your position that the new wage rates will not be effected until Foreign Articles are broken. Id. Rand testified that within a few days of receipt of the January 19 letter, he called Admiral Carroll to explain MTL’s position, and, after a briefing from his attorney, gave Admiral Carroll “an informal legal briefing on foreign articles.” See Tr. 1103-05. Rand gave the following testimony: Q. Admiral Carroll told you he was going to go ahead and pay the bill? A. Right. Q. He didn’t tell you why he was going to pay? A. No. Q. Did you have an impression from Admiral Carroll as to why he agreed to pay the bill after telling you in a letter just a few days before that he wasn’t going to pay the bill? A. Because he admitted he owed it. Tr. 1106. This testimony is not entirely consistent with the documentary evidence presented to the court. On February 11, 1983, Rand signed a letter to Vice Admiral Carroll. See Dx 12. The letter began: “In view of the assorted complexities contained in the [Navy] Contract, I have asked my staff to assess the contents in your letter of 19 January 1983 and prepare for me a formal response.” See id. at 1. The letter acknowledged that the problem of reducing the wages of crew members on foreign articles “was unexpected by either MTL or its unions at the time of our proposal.” Id. at 3. MTL estimated the cost difference to be “between $600,000 and $900,000.” Id. at 4. “MTL c[ould] ill afford to suffer a loss of this magnitude.” Id. MTL “request[ed] relief from the government on a dollar for dollar basis in lieu of MTL attempting to absorb these extra ordinary costs.” Id. MTL felt it “should not be held liable for the legally binding implications of the [foreign] articles which were not anticipated by either party at the time the proposal [for extension of the Navy Contract] was accepted.” Id. On April 15, 1983, Admiral Carroll responded to the February 11 letter. See Dx 13. The letter granted MTL’s request for monetary relief, “estimated to amount to $600,000.” Id. G. The June 1983 Memorandum In a letter dated June 6, 1983, Thomas Murphy wrote Capt. Lowen to inform him that “Military Sealift Command requirefd] formal Agreements respecting the contract changes pertaining to the Sealift Tankers. This [wa]s necessary for billing purposes.” Dx 42. The letter included a draft agreement, reproduced in the margin. See id. The draft had been prepared by Murphy and Berkowitz. See Murphy Dep. at 146-47; Tr. 605. Lowen testified that he agreed that the draft embodied MMP’s agreement with MTL. He would have signed the June 6 draft but for the inclusion of a paragraph that is irrelevant to this action. See Tr. 384-85; id. at 424. The irrelevant paragraph, however, made Lowen “s[ee] red.” Id. at 235-36. For that reason, the June 6 draft “did not get signed. And [Lowen] could think of no other document that was signed.” Tr. 235. Curiously, it appears that “there was never any communication between the parties [on the subject of the draft] after” the June 6 letter was sent. See Tr. 601 & 619 (Murphy testimony). It also appears that there never were any conversations with the Navy about the fact the draft agreement had not been signed. See Murphy Dep. 121. Nevertheless, the concessions that had been negotiated in 1982 were implemented. See Tr. 236. H. Events in 1984 In a letter dated March 12, 1984, Murphy wrote Lowen to inform MMP that MTL intended to offer the Navy a proposal in response to the Navy’s solicitation for bids on a new contract. See Px 49 Ex. 0 at 1. The letter outlined the labor costs that MTL planned to include. See id. at 1-2. These costs differed from those contained in the Master Agreement. The letter ended with MTL’s hope that MTL’s offer would “be favorably received” by MMP and, subsequently, the Navy. See id. at 2. On March 19, 1984, Murphy sent Lowen a second letter regarding another Navy contract that was “up for grabs.” See Murphy Dep.Ex. H. The letter warned ominously that “[t]here is every indication that companies with labor organizations different from” MTL’s unions would “be going after this business.” Id. The letter included an attachment that compared MTL’s “current payroll cost,” Schedule A, and the figures the Employer felt it would have to bid at to win the contract. There is a difference per ship per month of $15,-591.18. See id. On March 30, 1984, Murphy sent Lowen another letter. See Px 49 Ex. P. This letter referred to the contracts referenced in the March 12 and March 19 letters, and a third contract as well. See id. The March 30 letter stated that it was “a follow-up” to a telephone conversation between Murphy and Lowen that had occurred on March 29. See id. The letter stated: Military Sealift Command continues to insist that we must have written confirmation from our unions indicating approval of our offer. Enclosed is a letter that MM & P gave us last year when we were going after the C-3 vessels. I believe a similar letter having to do with the above RFP’s would be acceptable to Military Sealift Command. Obviously, it will be disheartening if the Navy considered our Company non responsive [sic] simply because we did not have a letter. Px 49 Ex. P. On April 2, 1984, Captain Lowen provided the letter Murphy requested, for all three contracts. See id. Ex. Q. On April 8, 1984, MMP gave notice to all employers who had agreed to the Master Agreement of its intention to modify and amend the Master Agreement, set to expire at midnight June 15, 1984. See Px 17. The notice was sent to “Marine Transport Lines — USN.” See id.; Tr. 455. Marine Transport Lines — USN apparently is a subsidiary of MTL that manages the operation of the Sealift vessels, though this is unclear. See Tr. 463 (quoting Px 49 (Lowen Affidavit) at para. 40). It is located at the same address as MTL. See Px 17. Murphy wrote Lowen again on May 10, 1984. See Px 49 Ex. R. Murphy’s May 10 letter stated that the Navy required something more specific than Lowen’s April 2 letters. Murphy included a draft that MTL believed would satisfy the Navy. See id. The letter further stated that MTL had to have the letter, “or something similar,” by May 15th. See id. Capt. Lowen provided a letter that met MTL’s requirements on May 15th. See Px 49 Ex. S. In fact, Murphy testified that he could not recall, either way, whether MMP ever refused, during 1984, to give MTL any letter it needed to bid on a Navy contract. See Murphy Dep. 79. On June 6, 1984, Murphy wrote Eugene O'Connor, Vice President & Executive Secretary of Tanker Service Committee, Inc., the bargaining agent for all employers who were parties to the Master Agreement. See Dx 48. MTL informed O’Connor that MTL was withdrawing the Tanker Service Committee’s authority to negotiate on MTL’s behalf towards any new or modified or extended Master Agreement, or to negotiate with any labor organization other than the National Maritime Union. See id. On June 13, 1984, Lowen wrote Marine Transport Lines — USN notifying it, first, that the Master Agreement was being automatically renewed for one year, until June 16, 1985, and, second, that the Sealift Agreement ran until May 7, 1985. See Px 19. Lowen believed that, in the absence of a similar letter of renewal, directed to Marine Transport Lines, Inc., MTL had the right to serve a notice of termination of the Master Agreement as it applied to MTL’s commercial fleet. See Tr. 501 & Px 20. However, Lowen believed MTL had no right to terminate the Sealift Agreement on June 16, 1984. See Tr. 501. The purpose of Px 19, Lowen testified, was to extend the Sealift Agreement from May 7, 1985 to June 16, 1985, so that it would expire simultaneously with the Master Agreement, as renewed. See Tr. 502. On June 15, 1984, MTL sent a telex, under Rand’s name, to “all ships in the MTL fleet (Officers and Unlicensed Personnel).” See Dx 45. The telex announced that MTL had entered new collective bargaining agreements with three of its unions, and that MTL “ha[d] not renewed [its] contractual relationship with the International Organization of Masters, Mates and Pilots and that contract w[ould] expire on midnight, Eastern Standard Time, on June 15, 1984.” Id. at 1. The telex stated that “[t]he decision to change MTL’s labor affiliation as regards deck officers was not made without careful thought.” Id. “MTL’s unions, except for MM & P, have been eager to meet the challenge [of a “depress[ed]” market for MTL’s services]. Only the MM & P has been recalcitrant. ” Id. at 2. (emphases added). The telex invited certain MMP members, see id. at 3; Tr. at 771-72, to stay with MTL. See Dx 45 at 2. MTL offered to pay any fines MMP imposed on those choosing to remain with MTL so long as they took “reasonable steps to avoid or minimize the possibility of a fine by resigning from MM & P.” Id. at 2. MTL, having learned from the foreign articles episode with MSC, see discussion supra Part F, also assured crew members that those on foreign articles would not have their terms of employment altered “for the duration of those articles.” Id. at 3. The telex concluded with new work rules, or working conditions, for licensed deck officers, applicable on June 16, 1984. See id. at 3-7. MTL filed this action on June 16, 1984. MMP members serving on the Sealift vessels were advised by the Union to continue working. MTL, however, stopped recognizing the Union, and refused to make payments towards various Union benefit plans. On October 3, 1984, Capt. Lowen sent a telex to “all MTL vessels” advising Union members to “cease all work of any kind except for that involving security of [the] vessel,” but to also remain on board the ships to protect their jobs. See Dx 46. LEGAL ANALYSIS It is important to recognize that this action involves three separate, yet intertwined, contracts — the Master Agreement, the Sealift Agreement, and the Navy Contract. MTL acknowledges that the Sealift Agreement exists, but insists that it must be limited to its specific terms. MTL cites the legal proposition that “a reference by the contracting parties to an extraneous writing for a particular purpose makes it a part of their agreement only for the purpose specified.” Guerini Stone Co. v. P.J. Carlin Constr. Co., 240 U.S. 264, 277, 36 S.Ct. 300, 306, 60 L.Ed. 636 (1916) (emphasis added), quoted in Lodges 743 & 1746, Int’l Ass’n of Machinists v. United Aircraft Corp., 534 F.2d 422, 441 (2d Cir. 1975), cert. denied, 429 U.S. 825, 97 S.Ct. 79, 50 L.Ed.2d 87 (1976); see United States v. Foster Wheeler Corp., 639 F.Supp. 1266, 1270 (S.D.N.Y.1986); Rhode Island Hosp. Trust Nat’l Bank v. Ohio Casualty Ins. Co., 613 F.Supp. 1197, 1202 (D.R.I.1985), rev’d on other grounds, 789 F.2d 74 (1st Cir.1986). This legal proposition is not, however, applicable to this action. It applies only where there exists two contracts which have distinct, though related, subject matters. See, e.g., Guerini Stone Co., 240 U.S. at 265-66, 36 S.Ct. at 301-02 (subcontract and main contract); Lodges 743 & 1746, Int’l Ass’n of Machinists, 534 F.2d at 429 (collective bargaining agreement and “Strike Settlement Agreement”); Foster Wheeler Corp., 639 F.Supp. at 1267 (Letters of Commitment and Letters of Credit); Rhode Island Hosp. Trust Nat’l Bank, 613 F.Supp. at 1199-1202 (guaranty bond and distributor contract). The Sealift Agreement, on the other hand, is indisputably a modification of the Master Agreement. See, e.g., Dx 42 (June 6, 1988 draft, supra note 11) (“WHEREAS, ... the Navy Contract would not have been extended if the terms and conditions of the [Master] Agreement were applicable to the Navy Contract for the term of this Agreement ...; and WHEREAS, in light of the foregoing circumstances the parties wish to effect certain changes in the wages, hours, and working conditions [detailed in the Master Agreement]”); Dx 6 at 1 (Rand November 22 letter) (“we have amended our union contracts”); id. at 2 (“Formal amendments to the union contracts are expected in due course.”); Dx 39 (Lowen November 29 letter (composed by MTL, see discussion supra at 21-22)) (Subject: “Sealift Operating Contract ... Amendments to Union Contracts”); id. (“We have reviewed your letter of November 22, 1982 to Commander, Military Sealift Command, which letter summarized the negotiated amendments to the agreements [sic]. In our opinion you have correctly summarized those amendments.”); Tr. 560 (testimony of Murphy, who negotiated the terms for MTL). The modification is an oral one, as the parties never reduced the agreement to writing. See discussion supra Background Part G. A different rule of law than that cited by MTL applies to such a contract modification, which the court will explicate following a brief discussion of the appropriate standard of proof. The parties disagree as to the standard, or burden, of proof that must be satisfied to show the terms of an oral modification of a written contract. MTL argues that such terms must be proven by “clear and convincing” evidence. See, e.g., Amerdyne Indus. v. Pom, Inc., 760 F.2d 875, 877 (8th Cir.1985) (applying Arkansas law); Standard Alliance Indus. v. Black Clawson Co., 587 F.2d 813, 829 (6th Cir.1978) (applying Ohio law), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 396 (1979); In re Indus. Car Mfg. Co., 1 B.R. 339, 343 (Bankr.E.D.Pa.1979) (applying Pennsylvania law); Thaler v. I C I United States, Inc., 476 F.Supp. 67, 71 (W.D.Ky.1979) (applying Kentucky law). MMP asserts that it need prove such terms by the usual civil evidentiary standard of the preponderance of the evidence. See Barrett v. Bank of Am., N.T. & S.A., 183 Cal.App.3d 1362, 1371, 229 Cal.Rptr. 16, 22 (4th Dist.Ct.App. 1986); Sullivan v. Mosner, 266 Md. 479, 490-92, 295 A.2d 482, 489 (1972). See generally Addington v. Texas, 441 U.S. 418, 423-24, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979) (explaining that generally standard of proof in civil cases is mere preponderance of evidence, but that “clear, unequivocal and convincing” standard is sometimes applied “to protect particularly important individual interests in various civil cases”). The court need not decide the question. The existence of all six modifying terms in the Sealift Agreement are indeed proven by clear and convincing evidence. Those terms are: reduction of all wage rates, including penalty rates, premium rates, and the Master’s Financial Responsibility Rate, to June 16, 1981 levels; reduction of vacation benefits to 13 days for each 30 days of employment; elimination of the diesel and automation rates; transportation by economy class; a duration for the Sealift Agreement until May 7, 1985, see, e.g., Dx 42, and the right of MMP to make “changes in the various benefits.” See, e.g., Dx 6 at 2. The content of the first five of these modifications is also proven by clear and convincing proof. The parties disagree as to the content of the sixth. MTL argues that MMP could change only the four substantive “benefits” modified by the Sealift Agreement, while MMP argues that “benefits” refers to everything in Schedule A. It is not necessary to resolve this disagreement, given the ultimate reasoning of the court’s analysis. MTL would have the court require MMP to show by clear and convincing proof that the terms of the Master Agreement not modified by the Sealift Agreement are incorporated into the Sealift Agreement. This misconstrues the applicable law. The applicable legal principle is so basic that it is nearly intuitive, and is stated infrequently. As the court stated succinctly in Robinson v. Crosson, 149 Colo. 235, 368 P.2d 791 (1962): Modifications do not necessarily abrogate the original contract entirely; indeed, the terms of the old contract are still to be followed so far as not changed or as inconsistent with the new terms, and the governing contract may be said to be composed of the new terms and the unchanged terms of the old. An intention to discharge the old contract is not presumed, and it must be made to appear that the parties intended to terminate the old contract in its entirety in order for it to be superceded completely by the new one. 149 Colo, at 238, 368 P.2d at 792-93, quoted in Fellers-Schoonmaker Homes, Inc. v. Five Star Homes & Real Estate, Inc., 158 Colo. 163, 172, 405 P.2d 677, 682 (1965); accord, Teal v. Bilby, 123 U.S. 572, 578, 8 S.Ct. 239, 242, 31 L.Ed. 263 (1887) (“It is hardly pretended by counsel ... that it was not competent, after the written contract was made and signed by the parties, for them to make another verbal contract in regard to some parts of it, which to that extent should be a substitute for the first one.”) (emphasis added); Corr v. Hoffman, 256 N.Y. 254, 258, 176 N.E. 383, 385 (1931) (where partnership continued after partnership for term ended, “the copartnership was terminable at will but, so long as it continued, the mutual rights and obligations of the partners remained as defined in the written contract, except in so far as particular provisions of the written articles might thereafter be modified by agreement or might be intended to apply only during the original fixed term”) (dictum). MTL cites District 2, Marine Engineers Beneficial Association v. Falcon Carriers, Inc., 374 F.Supp. 1342 (S.D.N.Y.1974), for the proposition that “[a]n oral agreement entered into during the period of a written collective bargaining agreement ... may be incorporated into the written agreement only when it is not inconsistent with the provisions of the writing.” Id. at 1348 n. 2. MTL argues that the expiration date of the Sealift Agreement, May 7, 1985, cannot be applied to extend the terms of the Master Agreement not modified by the' Sealift Agreement, which terms had an expiration date of June 16, 1984, because it is inconsistent with the termination date of the Master Agreement. The court declines to apply the stated principle to these facts. First, neither Falcon Carriers, Inc. nor the authority it relies on, the Labor Relations Expediter, addresses the meaning of the term “inconsistent.” Under MTL’s interpretation, no subject covered by a written agreement could be modified orally, except if the oral terms embody a mirror image of the written terms, since any material variance can be denominated an inconsistency. Instead, MTL argues the written agreement could only be supplemented by the addition of completely new terms. Such a proposition is rejected implicitly by numerous cases recognizing that “a written collective bargaining agreement can be orally modified.” Certified Corp. v. Hawaii Teamsters & Allied Workers, Local 996, 597 F.2d 1269, 1271 (9th Cir.1979) (citing cases). Particularly relevant to this case, in Certified Corporation the Ninth Circuit held that a “written collective bargaining agreement ... was orally modifiable as to duration.” Id.; see Trans, Inc. v. Gimbel Bros., No. 86-2247, slip op. (E.D.Pa. Feb. 25,1988) [available on WEST-LAW, 1988 WL 17009] (LEXIS, Genfed library, Courts file) (oral modification of duration term could be proven). The court notes that no reported case has followed Falcon Carriers, Inc. on this particular point. Second, MTL’s assertion of this proposition is wholly inconsistent with the central thrust of its case. To apply the proposition in a consistent manner, the court would have to hold that every term of the Sealift Agreement, including the agreement by MMP to accept lower wages, was and is unenforceable. Third, the policy presumably undergird-ing the proposition stated in Falcon Carriers, Inc., suspicion of untrustworthy oral agreements, and concern over the absence of sufficient expression of the parties’ intent to alter the writing, is not at risk in this action. There is no dispute that the Sealift Agreement expired simultaneously with the Navy Contract’s third extension. This has been proven by clear and convincing evidence. See Trans, Inc., supra (oral modification of contract’s duration term not proven by “clear, precise and convincing” evidence). Thus, the duration of the Master Agreement was extended in relation to the Sealift vessels, while the terms of the Master Agreement not modified were made applicable to those ships until the new termination date of May 7, 1985. There is an alternative way to view the Sealift Agreement, which reaches the same result. The Sealift Agreement may be seen as a new collective bargaining agreement applicable to the Sealift tankers. “[A] collective bargaining agreement need not be in writing in order to be enforceable.” Certified Corp., 597 F.2d at 1272; see H.J. Heinz Co. v. NLRB, 311 U.S. 514, 523-26, 61 S.Ct. 320, 324-26, 85 L.Ed. 309 (1941); Kaylor v. Crown Zellerbach, Inc., 643 F.2d 1362, 1367 (9th Cir.1981); Ra-bouin v. NLRB, 195 F.2d 906, 910 (2d Cir.1952); 29 U.S.C. § 158(d) (1982). Where two collective bargaining agreements are executed by the same parties and cover the same subject matter, the latter supercedes the former only as to inconsistent provisions in the two. See NLRB v. International Union of Operating Eng’rs, 323 F.2d 545, 546, 548 (9th Cir.1963) (“The provisions of the[ ] two contracts are inconsistent with each other and since the contracts were entered into by the same parties and cover the same subject matter, it is a well settled principle of law that the later contract supercedes the former contract as to inconsistent provisions.”) (emphasis added); Bechtel Corp. v. Local 215, Laborers’ Int’l Union of N. Am., 405 F.Supp. 370, 375 (M.D.Pa.1975) (“When two parties ... make a new agreement that is inconsistent with terms of a previous one dealing with the same subject matter, the later agreement operates to rescind and to discharge by substitution the inconsistent parts of the earlier contract.”), aff'd in relevant part, 544 F.2d 1207 (3d Cir.1976); cf. Jersey Cent. Power & Light Co. v. Local Unions 327, 749, 1289, 1298, 1303, 1309 & 1314 of I.B.E.W., 508 F.2d 687, 702-033 & n. 44 (3d Cir.1975) (dictum) (speaking of conciliation agreement and collective bargaining agreement: “If the new agreement contains terms that are clearly inconsistent with the previously existing contract ..., the fact of inconsistency is itself a sufficient indication of intention to abrogate the old and substitute the new_ It [the new agreement] operates as a discharge by substitution only so far as the inconsistency extends.”) (emphases in original) (bracketed material in original) (ellipses in original) (quoting 6A Corbin, Contracts § 1296 (1962)), vacated, 425 U.S. 987, 96 S.Ct. 2196, 48 L.Ed.2d 812 (1976). But regardless of how the Sealift Agreement is viewed, the burden to show intent to supercede the provisions of the Master Agreement not addressed specifically in the Sealift Agreement rests with the party arguing for that result, MTL. The court presumes that on the issue of the applicable standard of proof on this point, the parties would switch arguments, the Union arguing for application of the “clear and convincing” standard, and the Employer arguing for application of the “preponderance of the evidence” standard. Again, it is not necessary for the court to decide the question. MTL has failed to show by even a preponderance of the evidence an intent in the fall of 1982, when the Sealift Agreement was agreed to, to reject the provisions of the Master Agreement that were not modified. Both Rand and Murphy, the only MTL officials who dealt with Lowen, testified that during the 1982 negotiations they did not discuss with Lowen any aspects of the Master Agreement except those they needed to modify to secure the extension of the Navy Contract. See Tr. 625-27 (Murphy); id. at 678 (same witness, discussing San Francisco mee