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IMPORT EXPORT STEEL CORP. v. MISSISSIPPI VALLEY BA

March 24, 1965

In the Matter of Arbitration between IMPORT EXPORT STEEL CORPORATION and Nimpex International, Inc., Petitioners,
v.
MISSISSIPPI VALLEY BARGE LINE COMPANY, Respondent


Croake, District Judge.


The opinion of the court was delivered by: CROAKE

CROAKE, District Judge.

This is a petition by Import Export Steel Corporation (herein Impex) and Nimpex International, Inc. (herein Nimpex) for an order pursuant to 9 U.S.C. ยง 4 directing that arbitration proceed between the petitioners and the respondent in accordance with certain agreements and that Mississippi Valley name an arbitrator within fifteen days after a determination of the instant application.

 The dispute arises out of the loss of a cargo of steel coils when the S.S. "DORI" sank off The Azores on or about January 16, 1964. The petitioners claim, inter alia, that the vessel was unseaworthy at the commencement of the voyage and that Mississippi Valley breached the contract of carriage in failing to make delivery of the coils. It is asserted that Impex was the owner of the coils at the time the DORI sank.

 On October 23, 1963, Bulk Carriers, Ltd., chartered the S.S. "DORI" from her owners. On that same date, Nimpex entered into a charter party agreement with Bulk which provided for the carriage of the coils in question from Bremen or Emden, Germany, to New Orleans, Louisiana, on the S.S. "DORI." Paragraph 26 of that agreement provided that:

 
"Should any dispute arise between the Owners and the Charterers, the matter in dispute shall be referred to three persons in New York, one to be appointed by each of the parties hereto, and the third by the two so chosen, their decision or that of any two of them, shall be final, and for the purpose of enforcing any award, this agreement may be made a rule of the Court. The Arbitrators shall be commercial men."

 On November 4, 1963, Mississippi appointed Bulk as its "overseas Agents" whose "primary function" was to be the solicitation of overseas cargo for carriage on the waterways served by Mississippi. It is asserted that the only interest of Mississippi was to obtain freight for its river line and that the entire ocean freight, plus a commission on the river freight, was to be retained by Bulk. It is further stated that the involvement of the respondent in the instant matter was pursuant to this arrangement with Bulk. Mississippi also confirmed "that we are prepared to issue through you, as agents of the Mississippi Valley Barge Line Company, 'Through Bills of Lading' from point of origin overseas through to destination on the waterways which we serve."

 The Charter Party was amended by an addendum dated December 13, 1963. That addendum contained the following provisions:

 
"1 - OBLIGATIONS: All the terms, and conditions applying to both the Disponent Owners and the Charterers, and which do not refer to both parties' obligations and privileges at the loading ports, have been deleted.
 
"2 - THROUGH B/L: The Disponent Owners will issue to the Charterers, upon completion of loading at German Ports, and concurrently with the payment of the throughfreight due, a Mississippi Valley Barge Line Company through-billof-lading, as attached. Disponent Owners will deliver the cargo, after trans-shipment from the DORI at New Orleans, and carriage by Mississippi Valley Barge Line Company owned or operated barges, to Chicago, Illinois * * * at a through rate and on terms stipulated below. * * *
 
* * *
 
"9 - ARBITRATION: Should any dispute arise between the Disponent Owners and the Charterers, the matter in dispute shall be referred to three persons in New York, one to be appointed by each of the parties hereto, and the third by the two so chosen, and their decision, or that of any two of them, shall be final, and, for purpose, of enforcing any award, this agreement may be made a rule of the Court. The Arbitrators shall be commercial men."

 Mississippi and Bulk entered into the following memorandum of agreement, dated December 13, 1963:

 
"It is this day mutually agreed between Mississippi Valley Barge Line Company, St. Louis, Missouri, and Bulk Carriers, Ltd., New York, New York, that:
 
"S.S. Dori Charter Party dated October 23, 1963, and Addendum dated December 13, 1963, has been of this day, sublet by Bulk Carriers, Ltd. to the ...

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