The opinion of the court was delivered by: POLLACK
In the Matter of the Arbitration between Neptune Maritime, Ltd., as carriers, against H & J Isbrandtsen, Ltd., as merchants, 83 Civ. 1429 (MP)
Neptune Maritime, Ltd. moves pursuant to 9 U.S.C. §§ 4, 5 and 206 for an Order compelling H & J Isbrandtsen, Ltd. to proceed to arbitration and appointing an arbitrator. For reasons stated below, this motion is granted.
Neptune's claim against Isbrandtsen arises out of the shipment of petroleum processing machinery and equipment from Houston to the People's Republic of China aboard the M/V BARYON in April and May of 1982. Isbrandtsen chartered space aboard the vessel from Neptune and relet the space to Plains Overseas Group, Inc. During the voyage, according to Plains, the cargo sustained heavy damage. Possibly as a result of this claimed cargo damage, there was a delay in the delivery of the cargo. Thus, Neptune asserts claims against Isbrandtsen for demurrage in the amount of $30,281.25 in the arbitration proceeding.
Relying on Clause 16 of the typed rider to the Booking Note agreement between Neptune and Isbrandtsen which provides:
Any disputes are to be settled by arbitration New York by shipping men according to rules of Society of Maritime Arbitration,
Neptune, on October 4, 1982, informed Isbrandtsen that it was demanding arbitration, appointing an arbitrator, and advising Isbrandtsen that if it did not appoint an arbitrator within 14 days then Neptune would apply to the Court for the appointment of an arbitrator on its behalf. On February 23, 1983, substantially more than 14 days after this notification was given by Neptune, Neptune petitioned this Court for the relief requested herein.
Between the time of Neptune's original demand for arbitration and the date that the petition was filed with this Court, Plains filed a complaint in the United States District Court for the Southern District of Texas on or about January 21, 1983. In this complaint against various cargo underwriters, the shipowner and Isbrandtsen, Plains asserts claims for cargo damage totalling approximately 1.6 million dollars.
On March 14, 1983, Isbrandtsen filed a third party complaint against Neptune asserting that Neptune was liable to it for contribution and/or indemnification. Isbrandtsen also cross-claimed against the shipowner whom Isbrandtsen suggests may be affiliated with Neptune.
Isbrandtsen now asserts that this Court should not order arbitration regarding the demurrage claim as the arbitrable claims between Neptune and Isbrandtsen are intertwined with the non-arbitrable claims with the parties to the Texas litigation who were not parties to the agreement to arbitrate.
An Order Compelling Arbitration is Proper
Isbrandtsen's assertion that the relationship between the issues in dispute between it and Neptune and the issues in the Texas litigation should somehow bar Neptune's right to arbitration is wholly without merit. Last month, the United States Supreme Court, in Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765, 51 U.S.L.W. 4156 ...