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GROENEVELD CO. v. M.V. NOPAL EXPLORER

February 2, 1984

GROENEVELD COMPANY, INC., AND CARIBMAR FORWARDING, Plaintiffs, against M.V. NOPAL EXPLORER, etc., in rem, KOALA SHIPPING & TRADING, INC., and CONCORDE/NAPAL LINE, in personam, Defendants; In the Matter of the Complaint of Koala Shipping & Trading Inc., Plaintiff, as Owner of the NOPAL EXPLORER for Exoneration from or Limitation of Liability.


The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, D.J.:

 On July 13, 1983, the M.V. Nopal Explorer capsized in the waters of the Dominical Republic. Cargo claimants, Groeneveld Company ("Groeneveld") and Caribmar Forwarding ("Caribmar") filed an action against the vessel in rem, the owner of the vessel, Koala Shipping & Trading, Inc. ("Koala"), and the charterer of the vessel, Concorde/Nopal Line ("Nopal"). Koala filed its own limitation of liability action. By endorsement dated November 29, 1983, these actions were consolidated and transferred to the United States District Court for the Southern District of Florida. Groeneveld moved to reargue the decision to transfer and Koala moved for an order vacating that order. In a memorandum and order dated January 10, 1984, I granted the motion to reargue and after considering the documents in opposition to the transfer of the action, including those documents that were not provided to me on the original motion, I denied the motion to transfer the action.

 Three motions are currently before me. First, Nopal moves for an order vacating the memorandum and order dated January 10, 1984. Second, claimants Commercial Union Insurance Co., John Swire & Sons (Japan) Ltd., William N. Feinstein & Co., and Albert Boulogne Et Fils moves for an order permitting the filing of claims nunc pro tunc with the same force and effect as if the claims had been filed within the allotted time. Finally, Koala moves, pursuant to 9 U.S.C. § 3, for a stay pending arbitration between Nopal and Koala.

 For the reasons set forth below, I make the following rulings: Nopal's motion to reargue is denied the motion to file claims nunc pro tunc is granted, and Koala's motion for a stay pending arbitration is granted but only as to the arbitrable claims between Koala and Nopal.

 DISCUSSION

 I.

 Nopal moves for an order vacating my memorandum and order dated January 10, 1984 on the ground that the "court has misapprehended or overlooked material facts and/or misapplied the applicable law." Nopal also requests a hearing on this matter. The request for a hearing is denied.

 In support of its motion for an order vacating my decision to not transfer the action, Nopal asserts the following arguments:

 1. The parties' initial failure to file all motion papers with me should be excused;

 2. I overlooked and/or misapprehended material facts concerning Nopal's and Koala's connection with New York, the location of the interested shippers, the amenability of certain potential third-party defendants to jurisdiction in New York and the direction to which the balance of conveniences assertedly tips.

 My January 10th decision was not based on the parties' failure to provide me with the papers on the initial motion to transfer or on the fact that Mr. Hayden, in his affidavit, represented that Nopal had "absolutely no nexus with New York" when in fact they had an office here. My reasons were adequately set forth in the January 10th decision. Accordingly, for those reasons Nopal's motion to reargue is denied.

 II.

 Claimants Commercial Union Insurance Co., John Swire & Sons (Japan) Ltd., William N. Feinstein & Co., and Albert Boulogne Et Fils move pursuant to Supp. Fed. R. Civ. P. F(4) to file claims nunc pro tunc with the same force and effect as if said claims had been filed before December 9, 1983, which ...


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