OCEANIA SHIPPING CORP., ETC. v. Thos. P. Gonzalez Corp., 77 Civ. 1301.

• Decision Date: 25 October 1977
• Docket Number: No. 77 Civ. 1301.,77 Civ. 1301.
• Citation: 442 F. Supp. 997
• Parties: In the Matter of the arbitration between OCEANIA SHIPPING CORP., owners of the LIBERIAN MOTOR VESSEL ALEXIS, Petitioner, and THOS. P. GONZALEZ CORPORATION, Respondent.
• Court: U.S. District Court — Southern District of New York

442 F. Supp. 997

In the Matter of the arbitration between OCEANIA SHIPPING CORP., owners of the LIBERIAN MOTOR VESSEL ALEXIS, Petitioner,

and

THOS. P. GONZALEZ CORPORATION, Respondent.

No. 77 Civ. 1301.

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

October 25, 1977.

Poles, Tublin, Patestides & Stratakis, New York City, for petitioner.

Deutsch, Kerrigan & Stiles, New Orleans, La., for respondent.

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

This case arises on a petition by Oceania Shipping Corporation ("Oceania") to confirm an arbitration award. Respondent Thomas P. Gonzalez Corporation ("Gonzalez") has submitted cross-motions to vacate or modify the award. For the reasons hereinafter stated, I confirm the arbitration award and enter judgment for Oceania in the amount of $25,398.75 plus interest at the rate of 8% from March 8, 1977, the date of the arbitration award.

Oceania and Gonzalez entered into a charter party agreement on March 21, 1974. In the course of performance of the agreement, several disputes arose between the parties. Pursuant to an arbitration agreement provided in the charter, the parties submitted their disputes to an arbitration panel in June, 1976 for determination and award. On March 8, 1977, after an evidentiary hearing at which both parties were represented by counsel, the panel issued a unanimous decision, awarding Oceania the sum of $25,398.75. However, Gonzalez has not yet tendered payment of said award to Oceania.

On April 1, 1977, Oceania petitioned this court for an order confirming the arbitration award and entering judgment in its favor for the amount awarded by the panel, plus interest. Gonzalez cross-moved for vacation or modification of the award pursuant to 9 U.S.C. §§ 10 and 11.

A. Jurisdiction

Oceania submits its petition to this court pursuant to 9 U.S.C. § 9 (1970).¹ Under 9 U.S.C. § 9, jurisdiction lies with the United States court in the district in which the arbitration award was made "if the parties in their agreement have agreed that a judgment of the court shall be entered upon the award . . ." The charter provided for arbitration in New York and the award in March, 1977 was issued by a panel located at 636 Fifth Avenue, within the Southern District of New York.² Additionally, the parties have agreed to court entry of judgment upon the award.³ Therefore, this court has jurisdiction.

B. Standards of Review

Pursuant to 9 U.S.C. § 9, an arbitration award properly before the court must be confirmed "unless the award is vacated, modified or corrected as prescribed in sections 10 and 11 of this title." The scope of review by the court under sections 10 and 11 is strictly limited.

"A federal court may vacate the award of an arbitrator only on the grounds specified in 9 U.S.C. § 10 (1970)."⁴ Bell Aerospace Co. Div. of Textron v. Local 516, Int. U., Etc., 500 F.2d 921, 923 (2d Cir. 1974). See also, I/S Stavborg v. National Metal Converters, Inc., 500 F.2d 424, 429-30 (2d Cir. 1974). The motion to vacate the award before me does not set forth any grounds which even appear to come within Section 10 of Title 9. Therefore, Gonzalez' cross-motion to vacate the award is denied.

A motion to modify an award is limited to the grounds set forth in 9 U.S.C. § 11.⁵Hellman v. Program Printing, Inc., 400 F.Supp. 915 (S.D.N.Y.1975). The only colorable claims by Gonzalez under § 11 relate to § 11(a): "Where there was an evident material miscalculation of figures . . .." Although Gonzalez does not refer the court to this section, it does raise as an objection to the award the claim that the damages should be reduced from approximately $19,000 to approximately $17,281.26 on the ground that some of the time for which they have been billed was attributable to the delay of the owner of the vessel. The panel, however, considered this contention and held that it was the charterer's burden to establish that delay was attributable to a deficiency of the vessel's cargo handling equipment. Since the charterer did not meet its burden, the panel would not speculate as to the cause of the delay. Under these facts, there was no "evident material miscalculation of figures."

Additionally, Gonzalez contends that the court should modify the award of 8% interest, reducing it to 6%. The arbitration panel has stated that it imposed the 8% interest figure "guided by applying commercial considerations . . .".⁶ Thus the 8% figure is not a miscalculation, but a reasoned determination outside the ambit of Section 11(a).

Finally, Gonzalez objects to the apportionment of arbitration fees by the panel. Gonzalez was ordered to bear 75% of the costs and Oceania 25%. The panel has noted, however, that the setting of fees of the arbitration panel is in the discretion of the panel unless otherwise stipulated between the parties.⁷ Again, there was no miscalculation here, but a decision by the arbitration panel, not subject to modification under 9 U.S.C. § 11(a).

The only remaining ground for modification or correction stems from the saving provision in 9 U.S.C. § 11, permitting the court to modify and correct the award "so as to effect the intent thereof and promote justice between the parties." The intent of the award is clearly reflected in its provisions and modification on that ground is not necessary. While Gonzalez, in effect, contends that the 8% interest award and the unequal apportionment of arbitration fees does not promote justice, such a conclusion is not evident on the record and the decision of the arbitration panel is not subject to de novo review. Union Emp. Division of Printing Industry of Washington, D. C., Inc. v. Columbia Typographical Union No. 101, 353 F.Supp. 1348 (D.D.C.1973), aff'd, 160 U.S.App.D.C. 403, 492 F.2d 669 (1974).

In conclusion, I find that there is no ground under 9 U.S.C. § 10 or § 11 to either vacate or modify the arbitration award. Therefore, it is

ORDERED, that the arbitration award is hereby confirmed; and it is

FURTHER ORDERED, that judgment be entered in favor of Oceania in the amount of $25,398.75, plus interest at the rate of 8% from March 8, 1977, the date of the arbitration award.

1 Award of arbitrators; confirmation; jurisdiction; procedure

If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in...