A/S Custodia v. Lessin Intern., Inc.
| Decision Date | 10 June 1974 |
| Docket Number | D,No. 1033,1033 |
| Citation | 503 F.2d 318 |
| Parties | A/S CUSTODIA, Petitioner-Appellant, v. LESSIN INTERNATIONAL, INC., Respondent-Appellee. ocket 74-1149. |
| Court | U.S. Court of Appeals — Second Circuit |
John J. Reilly, New York City (Donald J. Kennedy and Haight, Gardner, Poor & Havens, New York City, on the brief), for petitioner-appellant.
Hervey C. Allen, New York City (Burlingham Underwood & Lord, New York City, on the brief), for respondent-appellee.
Before SMITH and TIMBERS, Circuit Judges, and TYLER, District Judge. 1
For the second time in as many years we have before us the propriety of a district court's determination-- on affidavits rather than after an evidentiary hearing-- of disputed issues of fact with respect to the making of an arbitration agreement. See Interocean Shipping Co. v. National Shipping and Trading Corp., 462 F.2d 673 (2 Cir. 1972). As in Interocean, we reverse and remand for an evidentiary hearing.
On October 5, 1973, A/S Custodia, a Norwegian corporation and the owner of the M/V Ferngrove, filed a petition in the Southern District of New York pursuant to Section 4 of the Federal Arbitration Act, 9 U.S.C. 4 (1970), to compel arbitration of a controversy which had arisen under a charter party allegedly entered into on June 21, 1973 between Custodia and Lessin International, Inc., a New York corporation which was the charterer, for the transportation of a cargo of scrap from Tampa, Florida, to Taiwan. Lessin opposed the motion to compel arbitration on the ground that it had never entered into a written arbitration agreement, asserting that the alleged charter party relied upon by Custodia, although in writing, was unsigned.
The district court, Robert J. Ward, District Judge, without holding an evidentiary hearing but acting on the affidavits and briefs of the parties, on November 15, 1973 entered a brief order denying the motion to compel arbitration on the ground that 'the parties do not appear to have entered into 'a written agreement for arbitration * * *' as required by the United States Arbitration Act, 9 U.S.C. 4.' Thereafter, on December 21, 1973, the court denied Custodia's motion for reargument, in connection with which Custodia for the first time brought to the attention of the court our decision in Interocean and requested the alternative relief of a trial on the issue of whether the parties had entered into a written arbitration agreement.
The claims as to whether there was a binding charter party, as disclosed in the papers upon which the district court acted, may be briefly summarized. Early in June 1973, Haakon Steckmest, of the brokerage firm of J. H. Winchester & Co., received a quotation from Lessin's broker, Ocean Freighting & Brokerage Corp., to transport the cargo of scrap referred to above. This quotation was circulated by cable to various correspondents of Winchester. About two weeks later, on June 20, Steckmest received an offer on this business from Custodia's broker in Norway. The offer was conveyed on June 20 to Ocean Freighting which, on the same day, made a counter-offer on the vessel on behalf of Lessin. After the terms of the contract allegedly were agreed upon between Custodia and Lessin, Ocean Freighting prepared a form of charter party and forwarded it under cover of a letter dated June 25 to Steckmest with the request that he have it signed by Custodia. After obtaining authority from Custodia, Winchester signed the document on behalf of the owner and returned it to Ocean Freighting for execution by Lessin. Later, Steckmest was advised by Ocean Freighting that, since Lessin was unable to obtain the scrap cargo, it refused to sign the document.
Custodia claimed $76,000 damages as a result of Lessin's failure to perform the alleged charter party. The...
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