OCEANIA SHIPPING CORP., ETC. v. Thos. P. Gonzalez Corp., No. 77 Civ. 1301.

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: VINCENT L. BRODERICK
• 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.
• Docket Number: No. 77 Civ. 1301.
• Decision Date: 25 October 1977

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.

442 F. Supp. 998

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

442 F. Supp. 999

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. § 11.⁵ Hellman 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

442 F. Supp. 1000

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."

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