United States Barite Corp. v. MV HARIS, No. 81 Civ. 1289 (KTD)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation534 F. Supp. 328
Decision Date19 February 1982
PartiesUNITED STATES BARITE CORPORATION, Plaintiff, v. M. V. HARIS, her engines, boilers, etc., and Diakan Grace, S.A., Defendants.
Docket NumberNo. 81 Civ. 1289 (KTD)

534 F. Supp. 328

UNITED STATES BARITE CORPORATION, Plaintiff,
v.
M. V. HARIS, her engines, boilers, etc., and Diakan Grace, S.A., Defendants.

No. 81 Civ. 1289 (KTD)

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

February 19, 1982.


Donovan, Maloof, Walsh & Kennedy, New York City, for plaintiff; David L. Maloof, James F. Sweeney, New York City, of counsel.

534 F. Supp. 329

Hill, Rivkins, Carey, Loesberg O'Brien & Mulroy, New York City, for defendants; Donald B. Allen, New York City, of counsel.

MEMORANDUM AND ORDER

KEVIN THOMAS DUFFY, District Judge:

The action underlying the instant motion to compel arbitration was brought by United States Barite Corporation "Barite" to recover damages for the alleged destruction of a cargo of oil drilling lubricant which it shipped from Sicily to Mexico on the M.V. HARIS, the defendant's vessel.

Defendant Diakan Grace, S.A. "Grace", the owner of the vessel, moves to stay this action pending arbitration pursuant to 9 U.S.C. § 3, which provides:

If any suit or proceeding be brought in any of the Courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the Court in which such suit is pending upon being satisfied that the issue in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement ....

Barite is a subsidiary of Young Interests, Inc. "Young". Young entered a charter party with Grace (Defendant's Exh. A, Cl.36) whereby any dispute arising between charterer and owner must be submitted to arbitration. Barite, which shipped the damaged lubricant aboard the chartered vessel, contends that it is not bound by the charter party's arbitration clause because it is a separate corporate entity from Young and not a party to the charter.

The defendant argues that the bill of lading (Defendant's Exh. B), which names Barite as the notify addressee, incorporates by reference the arbitration clause found in the charter party. Moreover, asserts defendant, Barite, as a fully controlled subsidiary of Young, is the real party in interest and bound by the charter party arbitration clause, notwithstanding its separate corporate form.

Alternatively, the defendant seeks the dismissal of this suit pursuant to 28 U.S.C. § 1404 based on the doctrine of forum non conveniens. For the reasons stated below the defendant's motion is denied in its entirety.

1. Arbitration

Clause 36 of the charter party provides that arbitration is binding "Should any dispute arise between Owners and Charterers." Third parties have been held not to be bound by identical clauses. Import Export Steel Corp. v. Mississippi Valley Barge Line, 351 F.2d 503 (2d Cir. 1965); Production Steel v. S.S. Francois L.D., 294 F.Supp. 200 (S.D.N.Y.1968). Defendant seeks to demonstrate that Barite is a fully controlled instrumentality of Young and therefore bound by the terms of the charter party. Counsel for the defendant augments this contention by noting that Barite and Young share the same office suite. Moreover, defendant produced a letter from a Young vice president dated January 18 which asserts that there exists a claim against the vessel owner. This arguably evidences Young's primary ownership interest in the cargo. Similarly, the same vice president allegedly exerted dominion over the cargo by directing the ship's master to discharge the damaged cargo at sea (Exh. C & D) and by appointing a Lloyd's surveyor to protect Young's...

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19 practice notes
  • Hartford Fin. Systems v. Fla. Software Serv., Inc., Civ. No. 81-0184-P.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • November 2, 1982
    ...785, 46 L.Ed.2d 643 (1976); Fisser v. International Bank, 282 F.2d 231, 233-34 (2d Cir.1960); United States Barite Corp. v. M.V. Haris, 534 F.Supp. 328 (S.D.N.Y.1982); Farkar Co. v. R.A. Hanson Disc., Ltd., 441 F.Supp. 841, 845-46 (S.D.N.Y.1977), rev'd on other grounds, 583 F.2d 68 (2d Cir.......
  • Mak Marketing, Inc. v. Kalapos, Civil Action No. 08-cv-1008 (JCH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • May 8, 2009
    ...that "convenience and justice for all parties demands that the litigation proceed elsewhere." United States Barite Corp. v. M.V. Haris, 534 F.Supp. 328, 330-331 (S.D.N.Y.1982) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). Accordingly, defendants' ......
  • Citicorp Intern. Trading v. Western Oil & Refining, No. 88 Civ 5377 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 22, 1992
    ...alleged puppet corporation and whether the two entities deal with each other at arm's length." United States Barite Corp. v. M.V. Haris, 534 F.Supp. 328, 330 The proof at trial established that Citibank exercised "complete domination in respect to the transaction attacked so that CITC had a......
  • Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., Nos. 526
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 14, 1991
    ...(1981); Director's Guild of America v. Garrison Prod., 733 F.Supp. 755, 760-61 (S.D.N.Y.1990); United States Barite Corp. v. M.V. Haris, 534 F.Supp. 328, 330 Applying these--or any other pertinent factors--to the infinite variety of situations that might warrant disregarding the corporate f......
  • Request a trial to view additional results
19 cases
  • Hartford Fin. Systems v. Fla. Software Serv., Inc., Civ. No. 81-0184-P.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • November 2, 1982
    ...785, 46 L.Ed.2d 643 (1976); Fisser v. International Bank, 282 F.2d 231, 233-34 (2d Cir.1960); United States Barite Corp. v. M.V. Haris, 534 F.Supp. 328 (S.D.N.Y.1982); Farkar Co. v. R.A. Hanson Disc., Ltd., 441 F.Supp. 841, 845-46 (S.D.N.Y.1977), rev'd on other grounds, 583 F.2d 68 (2d Cir.......
  • Mak Marketing, Inc. v. Kalapos, Civil Action No. 08-cv-1008 (JCH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • May 8, 2009
    ...that "convenience and justice for all parties demands that the litigation proceed elsewhere." United States Barite Corp. v. M.V. Haris, 534 F.Supp. 328, 330-331 (S.D.N.Y.1982) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). Accordingly, defendants' ......
  • Citicorp Intern. Trading v. Western Oil & Refining, No. 88 Civ 5377 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 22, 1992
    ...alleged puppet corporation and whether the two entities deal with each other at arm's length." United States Barite Corp. v. M.V. Haris, 534 F.Supp. 328, 330 The proof at trial established that Citibank exercised "complete domination in respect to the transaction attacked so that CITC had a......
  • Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., Nos. 526
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 14, 1991
    ...(1981); Director's Guild of America v. Garrison Prod., 733 F.Supp. 755, 760-61 (S.D.N.Y.1990); United States Barite Corp. v. M.V. Haris, 534 F.Supp. 328, 330 Applying these--or any other pertinent factors--to the infinite variety of situations that might warrant disregarding the corporate f......
  • Request a trial to view additional results

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