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IN RE PROODOS MARINE CARRIERS CO.

January 10, 1984;

In the Matter of the Arbitration between PROODOS MARINE CARRIERS COMPANY, AS Disponent Owner of the M.V. GOOD HUNTER, Petitioner, and OVERSEAS SHIPPING AND LOGISTICS, Respondent.


The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

 This case arises on petitioner's motion to compel arbitration, and respondent's cross-motion to confirm a prior partial award of an arbitration panel, fill a vacancy in that panel, and restrict the issues which may come before the panel in future. The case was originally assigned to Judge Cannella. In his temporary absence from court, it came to the undersigned sitting in Part I because the circumstances required prompt resolution. Those circumstances involve imminent dates for voyages to be performed under the contract which forms the subject matter of the action.

 Petitioner is Proodos Marine Carriers Company ("Proodos"). Respondent is Overseas Shipping and Logistics ("OSL"). On June 23, 1983, at Houston, Texas, Proodos and OSL entered into a written "Liner Booking Note" which is in effect a maritime contract of affreightment. The contract called for OSL to furnish a series of cargoes of polyethelene pipe in bundles for carriage in vessels to be supplied by Proodos from Houston to Richards Bay, South Africa. Within the context of the contract of affreightment Proodos may be regarded as the shipowner (although it chartered the vessels in), and OSL as the charterer.

 Special term (D) of the contract provides:

 "Cargo to be moved in three or four shipments, charterer's option but not less than minimum 1,920 cubic meters each shipment."

 The face of the contract provides that the first shipment will take place about July 14, 1983 and the last shipment by February 28, 1984.

 The calculation of freight money is specified in Clauses 9 and 10. Clause 9 provides in part:

 "Pipe to be freighted on the net actual cube of the largest pieces per bundle."

 Clause 10 of the contract provides:

 "US Dlrs 42.00 per net cubic meter full berth terms hook to hook. Freight to be fully prepaid within 7 working days of signing/releasing bills of lading, vessel and/or cargo lost or not lost."

 Special term (J) provides:

 "Should any dispute arise between Owners and the Charterers, the matter disputed 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."

 Proodos nominated the motor vessel GOOD HERALD to lift the first cargo under the contract. She loaded in Houston in July, 1983. A dispute instantly arose. A narrow description of that dispute would be to say that Proodos refused to deliver on-board bills of lading to OSL. But that refusal was triggered by, and inextricably intertwined with, a dispute about how freights should be calculated. From the record before me, it appears that Proodos contended freights should be calculated on gross cubic measurement of the cargo, whereas OSL contended the calculation should be on the basis of net cubic measurements. Counsel at oral argument did not have a full technical grasp of the meaning of these terms. Nor, I confess, do I. "Net cubic measurement" appears to exclude the packaging of the pipes. But it is not necessary to define these terms precisely. What is significant is that "gross cubic measurement" results in significantly higher freight revenues than does "net cubic measurement." In the dispute arising out of the GOOD HERALD loading, Proodos insisted upon "gross cubic measurement"; consequently calculated a higher amount of freight than did OSL; ...


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