In re Kinoshita & Co.
| Decision Date | 16 March 1961 |
| Docket Number | No. 230,Docket 26608.,230 |
| Citation | 287 F.2d 951 |
| Parties | In the Matter of the Petition of KINOSHITA & CO., Ltd. and Kinoshita & Co., Ltd., USA as charterer and agent, Petitioners-Appellees, for an order directing American Oceanic Corporation, as owner or chartered owner of a vessel to be named, Respondent-Appellant, to proceed to arbitration in accordance with the terms of its written agreement. |
| Court | U.S. Court of Appeals — Second Circuit |
Barry M. Caruth, New York City (Irving G. Purcell, New York City, on the brief), for respondent-appellant.
David I. Gilchrist, New York City (George Yamaoka and Hill, Betts, Yamaoka, Freehill & Longcope, New York City, on the brief), for petitioners-appellees.
Before MEDINA, FRIENDLY and SMITH, Circuit Judges.
An agreement made in "New York, February 26, 1960" between "Kinoshita & Co., Ltd., Tokyo" and American Oceanic Corporation provided that American Oceanic would as charterer tender at a place and time specified in the contract a "vessel to be named" for charter to Kinoshita at $8 per ton for a voyage to Japan. The vessel was not tendered at the time and place specified in the agreement, although there was considerable correspondence between the parties relative to a possible extension of the time or the substitution of some alternative arrangement.
This maritime contract contained the following arbitration clause:
This proceeding to compel arbitration, based upon the United States Arbitration Act, 9 U.S.C. § 4, was commenced by the service of a notice of motion and supporting papers. American Oceanic made a cross-motion to dismiss the proceeding and for affirmative relief by way of an injunction. The motion to compel arbitration was granted, the cross-motion was denied, and American Oceanic appeals.
There is no merit in any of the arguments urged upon us for reversal. We shall discuss only one of them. It is argued that there was fraud in the inducement to enter into the contract because there was withheld from appellant the fact that Kinoshita & Co., Ltd. was a foreign corporation, not authorized to do business in New York and that there was some "concealment" and "misstatement," the character of which is not clear to us, relative to the difference between Kinoshita & Co., Ltd., the principal, and Kinoshita & Co., Ltd., U. S. A., the agent. Appellant seems to think there was some fraud, as it was induced to believe, so the argument runs, that if there was a breach of the contract by Kinoshita service of process could be effected on Kinoshita & Co., Ltd. in the State of New York in an action to recover damages for such a breach. We are told that there could be no compulsory arbitration until after the District Court had decided this so-called preliminary issue of fraud.
But the method of approach to the problem is set forth in Robert Lawrence Co. v. Devonshire Fabrics, Inc., 2 Cir., 1959, 271 F.2d 402, and this method has not been followed, so far as we can make out from the meager record before us. While the Supreme Court granted certiorari, 362 U.S. 909, 80 S.Ct. 682, 4 L. Ed.2d 618, the case was "settled with prejudice" and, as the case had become moot, the writ of certiorari was dismissed, 1960, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37. Moreover, the principles of Robert Lawrence Co. v. Devonshire Fabrics, Inc. have been followed in later cases in this Court. See Metro Industrial Painting Corp. v. Terminal Construction Co., 2 Cir., 1961, 287 F.2d 382; Amicizia Societa Navegazione v. Chilean Nitrate and Iodine Sales Corp., 2 Cir., 1960, 274 F.2d 805, 808.
Accordingly, and following and further developing principles of federal law, as stated in Robert Lawrence Co. v. Devonshire Fabrics, Inc., and as applicable to maritime transactions and...
To continue reading
Request your trial
-
Alamria v. Telcor Intern., Inc., Civil Action No. CCB-95-1551.
... ... See In re Kinoshita & Co., 287 F.2d 951, 952-53 (2d Cir.1961); see also Michele Amoruso E Figli v. Fisheries Development Corp., 499 F.Supp. 1074, 1080 (S.D.N.Y.1980) (following Kinoshita and noting that the omission of the phrase "relating to" is significant in the Second Circuit); Mediterranean Enterprises, ... ...
-
Hamilton Life Ins. Co. of NY v. Republic Nat. Life Ins. Co.
... ... Devonshire Fabrics, Inc., 271 F.2d 402, 410 (2d Cir. 1959), cert. dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960); El Hoss Engineering & Transport Co. v. American Independent Oil Co., 289 F.2d 346, 349 (2d Cir. 1961); Petition of Kinoshita & Co., 287 F.2d 951 (2d Cir. 1961) ... In New York, the law "is not entirely clear." Prima Paint Corp. v. Flood & Conklin Mfg. Co., supra, 388 U.S. at 400, n. 3, 87 S.Ct. 1801, 18 L.Ed.2d 1270. Most of the reported cases state that a claim of fraud in the inducement of the ... ...
-
Lummus Company v. Commonwealth Oil Refining Company
... ... §§ 1-13, in Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2 Cir.1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed pursuant to stipulation, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960), and has decided more recently in In re Kinoshita & Co., 287 F.2d 951 (2 Cir.1961); however, the First Circuit felt bound to apply the law of New York. Taking that view, it held that a New York court would consider a claim of voidability based on fraud in the inducement of the entire contract, even though not related specifically to the agreement ... ...
-
Cape Flattery Ltd. v. Titan Maritime LLC
... ... The parties never formed the joint venture, raising the question whether the plaintiff's claims for breach of contract, breach of fiduciary duty, inducing and conspiracy to induce breach of contract, quantum meruit, and conversion, were subject to arbitration. Id. Relying on In re Kinoshita & Co., 287 F.2d 951, 953 (2d Cir.1961), Mediterranean found that "arising hereunder," like "arising under," was more narrow than "arising out of or relating to," which contemplates a broad agreement to arbitrate. Mediterranean Enters., 708 F.2d at 1464. The omission of "relating to" in ... ...
-
First Circuit Finds Fraudulent Inducement Claims Arbitrable By Virtue Of The 'Ambiguity' Of 'Arising Under' Language Despite Granite Rock
...the Court of Appeals joins the other Circuits limiting to its facts (a polite way of saying refused to follow) In re Kinoshita & Co., 287 F.2d 951, 953 (2d Cir. 1961), where the Second Circuit found that where an arbitration clause "refers to disputes or controversies 'under' or 'arisin......
-
Choice Of Law Determines Arbitrability; 'Clear And Unmistakable' Standard Adopted; 'Arising Under' Deemed A Narrow Arbitration Clause
...in doing so, the Court ruled that the phrase, "any disputes arising hereunder", was a narrow clause. Following In re Kinoshita & Co., 287 F.2d 951 (2d Cir. 1961), the Court found that the narrow clause applied only to those disputes relating to the interpretation and performance of the ......
-
Chapter 8
...clauses as a matter of federal law are separable from the contracts in which they are embedded. See also, In re Kinoshita & Co., 287 F.2d 951 (2d Cir. 1961).[29] . Prima Paint Corp. v. Flood & Conklin Manufacturing Co., N. 16 supra, 388 U.S. at 404.[30] . Pollux Marine Agencies v. Dreyfus C......