The opinion of the court was delivered by: WYATT
This is a motion on affidavits by defendants Import & Export Steel Corporation (Impex), Nimpex International Incorporated (Nimpex), and Insurance Company of North America (Insurance North)
(1) to dismiss the complaint for failure to state a claim upon which relief can be granted (Fed.R.Civ.P. 12(b)(6));
(2) to dismiss the complaint for lack of jurisdiction over the subject matter (Fed.R.Civ.P. 12(b)(1));
(3) to dismiss the complaint because a "declaratory judgment is inappropriate" (this is probably to be treated as a motion for summary judgment under the last sentence of Fed.R.Civ.P. 12(b)); and
(4) to require counsel for plaintiff to "produce substantial proof" that they were duly authorized by plaintiff to commence this action.
Under date of October 23, 1963, defendant Bulk Carriers, Ltd. (Bulk) as "Disponent Owners" of the vessel "Dori" chartered her to defendant Nimpex to carry a full cargo of steel coils on one voyage from Germany to New Orleans. No definition of "disponent owner" has been found but I assume it means a person not the actual owner but legally capable of making a charter of the vessel.
On November 4, 1963, plaintiff Barge appointed defendant Bulk its agent to solicit overseas cargo for carriage by its barges on rivers in this country.
Under date of December 13, 1963, and doubtless reflecting efforts of Bulk to secure cargo for Barge, the charter party was amended by "Addendum No. 1" in relevant part as follows: (a) the cargo was to be delivered at Chicago rather than New Orleans; (b) the "through freight rate" to Chicago was fixed and, of course, at a higher rate than that to New Orleans; (c) Bulk agreed to issue (on completion of loading at German port) to Nimpex (the "charterers") "a Mississippi Valley Barge Line Company through-bill-of-lading, as attached"; and (d) the arbitration clause was provided to read as follows:
"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."
It does not appear when "Addendum No. 1" was executed.
Under the same date of December 13, 1963 a "memorandum of agreement" was executed by Bulk and Barge under which it was agreed that the charter party and addendum were "sublet" to Barge, that Barge would assume all obligations of Bulk thereunder, and that Bulk "as agents for" Barge would issue a through bill of lading. It is represented for Barge that this "memorandum of agreement" was not executed "until after the DORI departed from Emden in January 1964."
The Dori was loaded in Germany, at which time bills of lading were issued by the Master covering the carriage of the cargo to New Orleans and delivery there to the order of Franklin National Bank notify Impex. It must be assumed that the delivery provisions in the bill of lading were on instructions of Nimpex, charterer of the Dori. In an affidavit, it is stated that Impex was the owner of the cargo. That the delivery port in the Master's bills of lading was New Orleans and not Chicago is consistent with the representation for Barge that the "sublet" of the charter party to Barge, while dated December 13, 1963, was not actually ...