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SVEN SALEN AB v. JACQ

March 18, 1983

SVEN SALEN AB Plaintiff,
v.
JACQ. PIEROT, Jr., & SONS, Inc., Defendant



The opinion of the court was delivered by: SOFAER

MEMORANDUM OPINION AND ORDER

 ABRAHAM D. SOFAER, D.J.:

 In this action jurisdiction rests upon diversity of citizenship, though the facts carry a maritime flavor. Plaintiff Sven Salen AB is a Swedish corporation with its principal place of business in Sweden. Defendant Jacq. Pierot, Jr. & Sons, Inc. ("Pierot") is a New York corporation. Both parties are in the business of ship brokerage, engaged in arranging for the sale, purchase, and construction of ships. Plaintiff seeks damages for breach of an alleged cobrokerage agreement, and recovery in quantum meruit. Defendant has moved for judgment on the pleadings based upon the statute of frauds as well as the statute of limitations. For the reasons stated below, the motion is denied.

 This dispute has its genesis in an innocuous four-line telex from Pierot to Sven Salen, dated March 21, 1974 (Defendant's Exhibit A):

 
PLS ADVISE PRICE AND DELIVERY POSITION FOR 1 TO 4 LPG-CARRIERS OF ABT 75.000 CBM IN POLAND. UNDERSTAND HOEGH JUST PLACED 2 ORDERS AT ABT USD 42.500.000.
 
PLS MAIL SPECS/PLANS

 Pierot thus requested information (price and delivery specifications) regarding the construction of from one to four liquid petroleum gas-carrying (LPG) vessels in Poland. The request, as the parties stipulate, concerned a particular manufacturer, Centromor, a Polish import/export organization, with the vessels to be constructed at the Gdansk Shipyard.

 Sven Salen responded to the request in a telex dated April 3, 1974, stating that no price indication was obtainable, that direct negotiations with the Poles would be necessary, and inquiring whether Pierot's client would be willing to travel to Poland. (See Defendant's Exhibit E). Pierot replied that, based on past experiences with Poland, Pierot would require at least a price indication and vessel description before recommending that its client travel to Poland. Pierot's clients were the Northern Natural Gas Co. of Omaha (NNG), and Marine Transport Lines (MTL). The plan at that point was for MTL to purchase the vessels, and then to charter them to NNG on a long-term basis.

 On April 8, 1974, Sven Salen telexed to Pierot a price quotation of $45 million per vessel, with vessel description and payment terms to be forthcoming. Sven Salen also asked Pierot to provide flag and class information. These inquiries were promptly answered by Pierot in a telex also dated April 8, 1974. (See Defendant's Exhibits F, G). Sven Salen claims it then orally informed Pierot that a firm price and vessel description could not be obtained until the end of May 1974, due to difficulties caused by Poland's review of its five-year plan. On April 17, 1974 Pierot requested that Sven Salen expedite forwarding price and vessel specifications. Sven Salen's response was a letter dated April 22, 1974, which described a "General Arrangement Plan and Brief Technical Specification." (See Defendant's Exhibits S.Q.).

 Toward the end of the period covered by these communications, Pierot apparently decided to deal directly with Centromor. (See April 17, 1974 telex from Pierot to Mr. Leon Korgul; Defendant's Exhibit T). Centromor responded by telex dated April 22, 1974, urging that Pierot contact a Polish trade mission which then happened to be in New York seeking to develop business. Pierot contacted the mission in New York, and, according to Pierot, the mission gave firm price and vessel specifications. In fact, an April 23, 1974 letter from Centromor to Pierot contains a firm offer for two vessels, with price, payment, delivery terms and vessel specifications. (See Defendant's Exhibits V, W). Pierot negotiated further with the mission both by telex and on a visit to Poland on May 15, 1974. These direct negotiations culminated in a letter of intent and subsequent contract, under which NNG became contract purchaser, rather than MTL. The contracts were signed in New York on June 27, 1974.

 Meanwhile, on May 3, 1974, Sven Salen telexed Pierot requesting that it be permitted to participate in the negotiations. (Defendant's Exhibit B). Pierot responded on May 7, 1974, recounting the events, noting Sven Salen's alleged inability to provide information promptly, and rejecting Sven Salen's request to participate. (See Defendant's Exhibit H). Sven Salen subsequently demanded, without result, its share of the commission during June, July, and August of 1974.

 I. Statute of Limitations

 Plaintiff commenced this suit on February 25, 1982. Under New York CPLR § 213(2) (McKinney 1972) a contract action must be commenced within six years of the date on which the underlying claim accrued. While assuming arguendo that the parties entered a valid cobrokerage agreement sometime during March and April 1974, defendant Pierot argues that § 213(2) bars relief because Sven Salen's claim, if any, accrued either on May 7, 1974, the date Pierot rejected Sven Salen's request to participate, or on June 27, 1974, the date the shipbuilding contracts were signed in New York. Plaintiff, on the other hand, asserts that no claim accrued until Pierot received its commission from the principals. The exact date at which Pierot received its commission is not yet ascertained, but plaintiff alleges that at least a portion, if not all, of the commission was paid to Pierot sometime after February 25, 1976, within six years of this action.

 A claim accrues when the potential plaintiff is first able to maintain the cause of action in question. United States v. Skidmore, Owings & Merrill, 505 F. Supp. 1101, 1104 (S.D.N.Y. 1981); Afshar v. Procon Inc., 442 F. Supp. 887, 890 (S.D.N.Y. 1977). In a contract case the plaintiff is generally able to maintain a cause of action as soon as the defendant breaches the contract. Schmidt v. McKay, 555 F.2d 30, 34 (2d Cir. 1977); Skidmore, 505 F. Supp. at 1104 n.3. Here plaintiff Sven Salen asserts that it could not have maintained a cause of action for nonpayment of the cobrokerage fee until Pierot had received its commission from the principals, because under the alleged cobrokerage agreement Pierot had no duty to pay Sven Salen until Pierot had been paid. Pierot claims that under the assumed agreement it had a duty to pay Sven Salen as soon as the shipbuilding contracts were signed; moreover, Pierot ...


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