The opinion of the court was delivered by: CANNELLA
Proceeding to compel the respondent to proceed to arbitration, is dismissed.
This proceeding came before this court as a motion on December 20, 1966. Since there was a serious question concerning the existence of a written contract containing the arbitration clause upon which the petitioner relies, the court, on February 1, 1967, pursuant to 9 U.S.C. § 4 ordered an immediate trial of this issue. The trial commenced on February 3, 1967 and was continued until February 27, 1967, at which time the taking of evidence was completed and decision was reserved.
The facts, as adduced from all of the credible evidence produced at the trial, are not complicated. Respondent, Tacoma Oriental Line, Inc., in the latter part of March 1966, was seeking a vessel to transport a cargo of lumber and wood products from the west coast of the United States to the Far East. It engaged Seaport Shipping, a West Coast chartering broker, to procure a vessel and it in turn engaged Miral Marine Corp. in New York. Mr. Miral represented Miral Marine Corp. in the subsequent negotiations.
At about the same time the petitioner, Superior Shipping Corp., had a vessel, the S.S. Aspronisos, available which it was seeking to charter. Northern Ships Agency, Inc., whose president was Mr. Triandafilou, was its agent. Mr. Triandafilou was also the attorney-in-fact for the petitioner. He engaged Simpson, Spence & Young, chartering brokers, to handle negotiations. During the subsequent negotiations Simpson, Spence and Young were represented by Mr. Joseph C. Savage and Mr. Triandafilou also dealt directly with Mr. Miral.
For several weeks prior to April 11, 1966, Messrs. Triandafilou, Savage and Miral conducted negotiations by telephone. During these negotiations and at least one week prior to the oral fixture, Mr. Miral submitted a "pro forma" charter party to Messrs. Triandafilou and Savage which served as the basis for the negotiations. He also requested a capacity plan of the vessel, which was furnished to him and which he immediately forwarded to Seaport.
Finally, on April 11, 1966 the parties arrived at an oral fixture and Mr. Miral orally confirmed this fixture with his principal on the West Coast.
At this point, time became a critical factor. The vessel was to tender on the West Coast within the next two days and the charter party had to be sent to the West Coast for signing. Therefore, the normal procedure of following an oral fixture with a fixture note or memo was waived and Mr. Miral proceeded to draw up the charter-party dated April 11, 1966.
On April 12, 1966 at about 11:00 A.M. the original charter party was delivered, by hand, to Mr. Triandafilou. At about noon of the same day Mr. Triandafilou called Mr. Miral and informed him that there were some typographical errors in the charter party and that "grain" capacity should be substituted for "bale" capacity. He further advised Mr. Miral that he was returning the charter party signed, but that Mr. Miral was to make the corrections indicated. Mr. Miral informed Mr. Triandafilou that he understood the basis of the oral fixture to have been "bale" capacity, but that he would make the change subject to being rechanged by the respondent. Mr. Miral further advised Mr. Triandafilou that he would call the respondents and inform them of this change and the credible evidence indicates that he at least called Seaport and informed it of the change before he left for the West Coast the next morning.
On April 13, 1966, Mr. Miral arrived in Portland, Oregon and delivered the charter party, with the changes made, to a representative of Seaport who immediately air freighted it to the respondent at Seattle, Washington. At the time he delivered the charter party to Seaport, he mentioned the changes to one of its representatives.
At about 8:00 A.M. on April 13, 1966 the vessel was tendered. Alexander Bremner, Jr. respondent's treasurer, boarded the vessel at about 8:45 A.M. on April 13, 1966 and discovered pipe railing instead of solid bulwarks, a large generator and anchor windglass on deck, and grain nets in the holds, all of which limited his loading capacity. He immediately notified the owner's port captain and its West Coast agent that the vessel was not as represented to him and listed his objections. After listing his objections, he signed the Statement of Readiness.
Mr. Miral first learned of the respondent's objections on April 14 or April 15, 1966, while in Seaport's office. At that time he called Mr. Triandafilou and reported the objections, but said he would not make a complaint until the respondent had waited to see how the ship loaded. On April 15, 1966 he advised Mr. Bremner to delay a few days in signing the charter party and see how the vessel loaded and then if he was unsatisfied, to sign under protest.
On April 20, 1966 the respondent sent a letter to Seaport listing the aspects in which the vessel failed to comply with the oral fixture. A copy of this letter was sent to Simpson, Spence and Young and it subsequently forwarded a copy to Mr. Triandafilou.
On April 21, 1966 Mr. Bremner attached clause 58, containing the major areas in which the respondent claimed the vessel failed to comply with the oral fixture, and then signed his name conditioning his signature on the charter party as modified. This was sent to Mr. Miral and Mr. Triandafilou received it on April 26, 1966. Mr. Triandafilou, on seeing clause 58, returned the charter party to Simpson, ...