Tai Ping Ins. Co., Ltd. v. VESSEL M/V WARSCHAU

• Decision Date: 09 February 1983
• Docket Number: Civ. A. No. 82-3765.
• Citation: 556 F. Supp. 187
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: The TAI PING INSURANCE CO., LTD., et al. v. The VESSEL M/V WARSCHAU, et al.

556 F. Supp. 187

The TAI PING INSURANCE CO., LTD., et al. v. The VESSEL M/V WARSCHAU, et al.

Civ. A. No. 82-3765.

United States District Court, E.D. Louisiana.

February 9, 1983.

Harvey G. Gleason, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for M/V WARSCHAU.

James Hanemann, Jr., Hanemann & Little, New Orleans, La., for Tai Ping & Asia Cement.

George J. Fowler, III, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for Canadian Transport Co. Ltd.

ORDER

CHARLES SCHWARTZ, Jr., District Judge.

This matter came before the Court on the motion of defendant Kommanditgesellschaft Alfred C. Toepfer Schiffahrtsgesellschaft, m.b.H. and Lumber Carrier to stay the cross-claim and third-party complaint filed by Canadian Transport Company, Ltd. against mover pending arbitration. Following oral argument, and considering the record in this matter and the applicable law, for the reasons hereinafter set out, defendant's motion to stay pending arbitration is GRANTED, but, by order of this Court, the arbitration itself is stayed pending a final judgment by this Court on plaintiff's claims against mover and Canadian Transport Company, Ltd. (hereinafter referred to as "Canadian Transport").

This suit arises from an unfortunate transportation of coal from Ohio to Taiwan. During the ocean voyage portion of the carriage, the coal caught fire while on board the German Flag Motorship WARSCHAU.

At the time of the subject voyage, the WARSCHAU was owned by Kommanditgesellschaft Alfred C. Toepfer Schiffahrtsgesellschaft m.b.H. and Lumber Carrier (hereinafter referred to as "Toepfer"). The WARSCHAU was time chartered to Canadian Transport, which corporation in turn voyage chartered the WARSCHAU to Asia Cement Corporation (hereinafter referred to as "Asia Cement"). Asia Cement was also the purchaser of the coal and the receiver for the ocean transport portion of the carriage from America.

The main action was brought by Asia Cement in its capacity as both receiver and charterer of the coal, to recover alleged losses for short-delivery of the coal, loss of quality of the coal, and expenses in reloading the cargo at Long Beach, California. Plaintiff has named various defendants, including Toepfer and Canadian Transport.

Canadian Transport has filed a cross-claim and third-party complaint against Toepfer.¹ Toepfer has herein moved this Court to refer these claims of Canadian Transport to arbitration in London in accordance with the terms of the charter party between them. At such arbitration, Toepfer intends to present its counter-claims against Canadian Transport.

Toepfer bases its motion for a stay pending arbitration on Clause 17 of the time charter party, which reads as follows:

"That should any dispute arise between Owners and the Charterers, the matter in dispute shall be referred to three persons at London one to be appointed by each of the parties hereto, and the third by the two so chosen; their decision or that of any two of them, shall be final, and for the purpose of enforcing any award, this agreement may be made a rule of the Court. The Arbitrators shall be commercial men experienced in Shipping.

This time charter party was entered into in London on May 20, 1975, by two business entities named "Alfred C. Toepfer" and "MacMillan Bloedel Limited." Sometime after the signing of the time charter, Alfred C. Toepfer sold the WARSCHAU to the present owner, herein referred to as Toepfer. Addendum 8 to the charter party shows the transfer of ownership of the WARSCHAU from the one Toepfer entity to the other, as agreed to not otherwise affect the charter party by Toepfer and MacMillan Bloedel Limited (hereinafter referred to as "Bloedel"). Sometime after this Bloedel apparently transferred its interest in the charter party to Canadian Transport, a wholly-owned subsidiary of Bloedel.

No document has been offered showing this transfer, but it is clear from other documents that Canadian Transport has continuously represented itself as the charterer in its dealings with Toepfer and with plaintiff. For instance, in the voyage charter between plaintiff and Canadian Transport, the latter holds itself out as "a division of Bloedel, owner of the time chartered ... WARSCHAU." Furthermore, movant has filed in the record a sworn, uncontradicted affidavit from the managing director of Toepfer, which states that Bloedel assigned its rights to the charter to Canadian Transport.

Plaintiff has argued that the arbitration clause in the time charter cannot be enforced as regards the present parties, for lack of proof that a written arbitration agreement was ever in force between these parties. It is true that an oral agreement to arbitrate is not enforceable under the United States Arbitration Act; however, the absence of a written agreement between the present parties and/or the absence of a written assignment of rights from the charterer to its subsidiary does not mean that there is no written agreement to arbitrate here.

In fact, there is a written agreement to arbitrate, which is applicable to the present parties pursuant to the...