Kurt Orban Company v. S/S CLYMENIA

• Decision Date: 20 October 1970
• Docket Number: No. 69 Civ. 3381.,69 Civ. 3381.
• Citation: 318 F. Supp. 1387
• Parties: KURT ORBAN COMPANY, Inc., Plaintiff, v. S/S CLYMENIA, her engines, boilers, tackle, etc., the Broken Hill Proprietary Company, Limited, Union Navale, Defendants.
• Court: U.S. District Court — Southern District of New York

318 F. Supp. 1387

KURT ORBAN COMPANY, Inc., Plaintiff, v. S/S CLYMENIA, her engines, boilers, tackle, etc., the Broken Hill Proprietary Company, Limited, Union Navale, Defendants.

No. 69 Civ. 3381.

United States District Court. S. D. New York.

October 20, 1970.

Yorkston W. Grist, New York City, for plaintiff.

Wilson & Walker, New York City, for defendants.

TENNEY, District Judge.

Defendant Union Navale, a French corporate entity (hereinafter referred to as "Union"), the owner of S/S CLYMENIA, moves herein for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure or, in the alternative, to stay further proceedings on the admiralty and maritime claim pending arbitration pursuant to Title 9, U.S.C. § 3. The relevant facts are not in dispute¹ and, briefly stated, are as follows:

In July of 1968, The Broken Hill Proprietary Company Limited, an Australian corporate entity (hereinafter referred to as "Broken Hill"), as time-charterer and carrier, accepted on board S/S CLYMENIA at Newcastle, New South Wales, a shipment of wire coils for carriage to New Orleans, Baltimore and New Haven, and issued therefor its order bills of lading dated July 19, 1968. At that time, the S/S CLYMENIA was operating under a certain time-charter party made between Union and Broken Hill, dated May 4, 1968. The shipment referred to was not one of common carriage but was one of private carriage. It is alleged that the wire coils were subsequently discharged at New Orleans, New Haven, Bridgeport and Baltimore in a short and damaged condition, final discharge having been completed on August 27, 1968. The complaint herein was filed on August 1, 1969.

Plaintiff Kurt Orban Company, Inc., a New York corporation (hereinafter referred to as "Orban"), having purchased the said bills of lading, has instituted suit herein to recover damages for such shortage and damage in the sum of $25,000. It is Union's contention that Orban, under the terms of the bills of lading which it purchased, agreed to all the terms of the time-charter party between Union and Broken Hill hereinbefore referred to, including the provision of Clause 29 which reads as follows:

"All disputes from time to time arising out of this Contract shall, unless the Parties agree forthwith on a single Arbitrator, be referred to the final arbitrament of two Arbitrators carrying on business in London who shall be Members of the Baltic and engaged in the Shipping and/or Grain Trades, one to be appointed by each of the parties, with power to such Arbitrators to appoint an Umpire. Any claim must be made in writing and Claimant's Arbitrator appointed within three months of final discharge, and where this provision is not complied with the claim shall be deemed to be waived and absolutely barred. No award shall be questioned or invalidated on the ground that any of the Arbitrators is not qualified as above, unless objection to his acting be taken before the award is made."² (Emphasis added.)

The various bills of lading signed by the Master of S/S CLYMENIA and purchased by plaintiff Orban reflect the receipt of the cargo aboard the S/S CLYMENIA at Newcastle "in apparent good order and condition" bound for the particular port involved "as per charter party dated 4th May, 1968" and, further, that "the above-mentioned cargo is to be delivered in the like apparent good order and condition at the aforesaid port * * * unto Order * * * freight for same being payable as per the aforementioned charter party, all the terms, conditions, clauses and exceptions in which charter party are herewith incorporated. This Bill of Lading is to have effect subject to the provision of the Rules contained in the Schedule to the Australian Sea-Carriage of Goods Act 1924 as applied by that Act. The Shippers are to be entitled to the benefits of the privileges, rights and immunities conferred upon the Shipper, and the Shipowners are to be entitled to the benefit of the privileges, rights and immunities conferred upon the Carrier, by such Act, and the Schedule thereto, as if the same were herein specifically set out, the unit under Article IV(5) being the ton. General Average (if any) shall be settled according to the York/Antwerp Rules, 1950."³ (Emphasis added.)

An initial question raised herein by defendant's motions is whether the bills of lading effectively incorporated by reference the provision of the charter party, including the above-quoted arbitration clause. The question must be answered in the affirmative. It would appear that the instant case is essentially indistinguishable from Lowry & Co. v. S. S. Le Moyne D'Iberville, 253 F.Supp. 396 (S.D.N.Y.1966), app. dismissed, 372 F.2d 123 (2d Cir. 1967). See also Son Shipping Co. v. De Fosse & Tanghe, 199 F.2d 687 (2d Cir. 1952). In both Lowry and the instant case the arbitration clause was the standard centrocon clause. Indeed, the instant case would appear to be a stronger one for incorporation than Lowry, in light of the specific language "herewith incorporated" contained in the bills of lading herein and not present in the Lowry bills. See Lowry & Co., supra 253 F.Supp. at 398.

A further question is raised by the language in the bills of lading subjecting them to the provisions of the Australian Sea-Carriage of Goods Act. The instant shipment was bound for the United States so that the provisions of the Carriage of Goods by Sea Act (hereinafter referred to as "COGSA"), 46 U.S.C. § 1303(6) would appear applicable; nor am I prepared to interpret the Australian law to oust this Court of jurisdiction. Associated Metals & Minerals Corp. v. The Steamship Mihalis Angelos, 234 F.Supp. 236 (S.D.N.Y. 1964).

Plaintiff urges that COGSA precludes both the application of foreign law and the surrender of jurisdiction to a foreign forum. However, the provisions of COGSA, and more particularly § 1303(6) discharging the carrier and ship "* * * from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods * * *" do not invalidate the three-month limitation period fixed by the charter party clause and adopted by the bills of lading for the arbitration of disputes. Lowry &...