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PREMIER S.S. CORP. v. EMBASSY OF ALGERIA

October 20, 1971

In the Matter of the Arbitration Between PREMIER STEAMSHIP CORP., Petitioner,
v.
EMBASSY OF ALGERIA, Respondent


Palmieri, District Judge.


The opinion of the court was delivered by: PALMIERI

PALMIERI, District Judge.

This is a petition pursuant to the United States Arbitration Act, 9 U.S.C. §§ 4 and 5, *fn1" seeking a court order appointing an arbitrator and directing that arbitration proceed forthwith in the manner provided for in a contract of charterparty.

 The facts appear to be the following: Petitioner is a Liberian corporation with an office in New York City. It is owner of the S/S Ariston. Respondent is "an agency of the Algerian government, engaged in the transaction of commercial business therefor, with an office in Washington, D.C." The contract of charterparty in question was entered into on or about August 22, 1966, at Washington, D.C., between the petitioner shipowner and the respondent charterer. The arbitration clause commonly found in such contracts reads as follows:

 
ARBITRATION CLAUSE NEW YORK:
 
Should any dispute arise between Owners and the Charterers, the matter in dispute shall be referred to three persons at 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.

 Disputes arose between the parties and, since December 23, 1970, petitioner has allegedly communicated with respondent repeatedly requesting a statement of the latter's intentions in this matter and informing them of petitioner's intention to arbitrate failing an amicable agreement. No replies have been received by petitioner. On May 26, 1971, petitioner made a demand upon respondent for arbitration and named its arbitrator pursuant to the Arbitration Clause noted above. To date, respondent, failing to name an arbitrator, has maintained its silence; and the alleged disputes remain unsettled.

 A recent State Department communication to an attorney in this case *fn2" reveals the following:

 
Algeria severed diplomatic relations with the United States, and closed its Embassy here on June 6, 1967. . . . In addition to the difficulties arising from Algeria's not having an Embassy here, you must also realize that an Embassy and its diplomatic agents are entitled to immunity from United States jurisdiction. Thus, even if the Embassy were open, a court order could not compel it to go to arbitration.

 Petitioner alleges that service of the Notice of Hearing herein "was timely made upon Algeria by registered mail, return receipt requested. The Notice was delivered at the Embassy of the Republic of Guinea, Algerian Interests Section, and receipt was acknowledged."

 While certain of the questions raised are not novel there remains a basic threshold question which appears to be one of first impression -- namely that one of the parties to this controversy, i.e., the respondent Embassy or Government of Algeria, has remained silent throughout. In other words, what is before the Court is in effect an ex parte motion on the part of the petitioner.

 Section 4 of the United States Arbitration Act provides that

 
[the] court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration. . . .

 A literal compliance with the threshold determination required of the Court by this statutory provision is impossible because only one party is before the Court and the crucial facts have not been sufficiently demonstrated. The language of the petition does not place the Court in a position to determine whether the contract is commercial or governmental in nature: "[because] the Court must have a full ' development of the facts ' in order to dispose of the legal issues . . . the papers to be submitted by the parties should be based on specific facts and events succinctly stated and not accompanied by generalized conclusions." Pan American Tankers Corp. v. Republic of Vietnam, 291 F. Supp. 49, 52-53 (S.D.N.Y. 1968); see also Petrol Shipping Co. v. Kingdom of Greece, 332 F.2d 370 (2d Cir. 1964), cert. denied, 385 U.S. 931, 87 S. Ct. 291, 17 L. Ed. 2d 213 (1965).

 In the instant petition no plea of sovereign immunity was entered nor, in fact, has any response been made by respondent to any of petitioner's attempts to effect communication. It is this element of unexplained silence on respondent's part that lends a unique coloration to the instant petition. Under these circumstances I have been unable to "hear the parties " or to be "satisfied that the making of the agreement for ...


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