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VICTOR SHIPPING & TRADING v. METAL TRANSP. CORP.

March 8, 1984

VICTOR SHIPPING AND TRADING, LTD., Plaintiff, against METAL TRANSPORT CORPORATION, Defendant.


The opinion of the court was delivered by: DUFFY

OPINION

KEVIN THOMAS DUFFY, D.J.:

 Plaintiff, Victor Shipping and Trading, Ltd. ("Victor Shipping"), time charter owner of the M.V. Gina Juliano, brought this admiralty action against Metal Transport Corporation ("MTC") for breach of contract. Plaintiff claims that in June, 1981 defendant chartered the M.V. Gina Juliano to carry a cargo of shredded steel scrap from the east coast of the United States to Turkey. Plaintiff alleges that defendant breached the charter agreement and seeks $299,367.90 in damages.

 Defendant, on the other hand, asserts that the parties never entered into a binding charter of the M.V. Gina Juliano because the agreement was always "subject to confirming stem." MTC asserts that the supplier of the steel scrap, Portsmouth International Corporation ("Protsmouth"), did not "'confirm stem" within the time period agreed upon by plaintiff and defendant, thereby excusing both parties from any of the agreed to performance. Alternatively, MTC asserts that if there was a binding charger of the M.V. Gina Juliano, then the parties should be directed to proceed with arbitration as provided by the charter. I find that plaintiff failed to prove that the parties entered into a binding charter, and, accordingly, dismiss plaintiff's complaint.

 I held a one-day bench trial on this matter on January 12, 1984. Before the trial, the parties stipulated to the following undisputed facts as set forth in the Consent Pre-Trial Order at 2-10:

 (A) At and during all times material hereto, Victor Shipping was and now is a corporation duly organized and existing under and by virtue of the laws of Bermuda with a principal office and place of business at Hamilton, Bermuda; and was and is engaged in the business of operating vessels pursuant to private contracts of carriage for hire on the high seas, and was the time-chartered owner of the M.V. Gina Juliano, pursuant to a written time charter party dated May 8, 1981.

 (B) At and during all times material hereto, Calumet Shipping International Limited ("Calumet") was and now is a corporation or other business entity duly organized and existing under and by virtue of the laws of a foreign sovereign with a principal office and place of business at 276 St. James Street, Montreal, Canada, and was at all relevant times and is at the present time the exclusive ship broker for Victor Shipping.

 (C) At and during all times material hereto, MTC, the defendant herein, was and now is a corporation duly organized and existing under and by virtue of the laws of the State of New York, with its office and principal place of business at 1221 Avenue of the Americas, New York, New York.

 (D) Defendant at all relevant times was a corporate affiliate of Phibro Export Sales Corporation ("PESC") which at all relevant times was a corporation duly organized and existing under the laws of the State of New York with its office and principal place of business at 1221 Avenue of the Americas, New York, New York.

 (E) At all relevant times defendant was engaged in the business of, among other things, procuring ocean going cargo vessels for the purpose of transporting the cargoes of PESC.

 (F) At and during all relevant times material hereto, David Schalit was employed by MTC in their chartering department and was charged with the duty of procuring ocean going cargo vessels to carry the various cargoes of PESC.

 (G) On January 12, 1981 PESC entered into a contract ("January Contract") with the Portsmouth International Corporation of Portsmouth, New Hampshire, for the purchase of about thirteen thousand long tons of shredded steel scrap, ten percent more or less in PESC's option, for delivery F.O.B. vessel at Portsmouth, New Hampshire in February, 1981. Extensions of the delivery date were later agreed to and PESC did not actually take delivery under the January contract until June, 1981.

 (H) Mr. Nathan G. Berney is PESC's Group Vice President in charge of steel scrap trading operations and at all relevant times was the primary employee of PESC in charge of and personally involved in negotiations with Portsmouth.

 (I) During the week of June 15, 1981, Mr. Berney, or his assistant, Mr. Steven Mayer, contacted Portsmouth to discuss an additional purchase of approximately 10,000 long tons of shredded steel scrap for shipment in late June of 1981, or early July of 1981, in combination with the shredded steel scrap purchased under the January contract. No contract terms were finally agreed upon but in anticipation of concluding this purchase Mr. Berney instructed Mr. Schalit to ...


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