The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
Defendant, The Sanko Steamship Co., Ltd. ("Sanko"), moves pursuant to Fed. R. Civ. P. 56 for an order granting it summary judgment for attorneys' fees and costs against defendants, Rascator Maritime, S.A. ("Rascator"), Intra-Span, Incorporated ("Intra-Span"), Miles A. Galin ("Galin"), and Mahmud Ahmed a/k/a Mahmud Sipra ("Sipra"), jointly and severally. Essentially, the issue presented is whether Sanko is entitled to an award of legal fees as part of its indemnity judgment against the aforementioned defendants.
Galin and Rascator oppose Sanko's motion arguing (1) that the issue raised should be referred to arbitration, and (2) that there is a dispute as to material facts, including what costs should be calculated as part of the attorneys' fees. Sanko contends that any right to arbitration has been waived and that there are no material facts in dispute because they have been conclusively determined in prior proceedings before me. See, 594 F. Supp. 1490 (S.D.N.Y. 1984) and 609 F. Supp. 451 (S.D.N.Y. 1984).
The pertinent facts are set forth in greater detail in my earlier opinions and therefore will only be summarized briefly herein. Familiarity with these opinions and the opinion of the Second Circuit Court of Appeals, 782 F.2d 329 (2d Cir. 1986), is presumed.
In the original action, the plaintiffs were Dow Chemical Pacific Ltd. ("Dow") and Manuel International, Inc. and Manuel International D.I.S.C., Inc. (together "Manuel"). Dow sought to ship approximately 2,440,000 pounds of polyethylene resin aboard the Ogden Fraser, a general cargo vessel, from Montreal, Canada, to Bombay, India. Manuel sought to ship approximately 2,500 tons of steel aboard the Ogden Fraser from New Orleans, Louisiana, to Bombay, India.
The Ogden Fraser is owned by Ogden Fraser Transport, Inc. ("Ogden"). The vessel had been time chartered to Sanko through its agent, Sanko Kisen (U.S.A.) Corporation ("Sanko Kisen"), in 1974. The time charter agreement was on the New York Produce Exchange form of time charter party and was to last for a period of six years.
In November 1978, the Ogden Fraser was sub-time chartered by Sanko to Rascator. This charter agreement was also on the New York Produce Exchange form of time charter party. Rascator has been found to be the alter ego of Galin. Intra-Span was a corporation that conducted business on behalf of Rascator in the United States, and Sipra was the president and sole stockholder of Intra-Span.
Clause 8 of the time charter agreement between Ogden and Sanko provided that Sanko, as time charterer, was to be responsible for directing the itinerary of the Ogden Fraser and for performing cargo operations.
Clause 16 provided that Sanko could sub-charter the vessel but was to remain responsible to Ogden for the fulfillment of the terms of the charter.
The sub-time charter agreement between Sanko and Rascator also included a Clause 8 provision, which made Rascator responsible for directing the itinerary and performing the cargo operations of the Ogden Fraser, and a Clause 16 provision, making Rascator responsible to Sanko for the fulfillment of the terms of the charter.
In December, 1978, the Dow cargo was loaded onto the Ogden Fraser in Montreal. The vessel then proceeded to New Orleans, where 1,487 tons of Manuel's steel cargo was loaded. On February 1, 1979, Gulf Stream Navigation, a corporation owned by Sipra, sent instructions to the Ogden Fraser ordering the vessel not to proceed to Bombay, but to sail to Cadiz, Spain, a port to which the vessel was not originally scheduled to call. The vessel was further instructed to discharge the steel and resin cargoes in Cadiz.
Dow and Manuel brought action to recover transshipment expenses incurred because of the vessel's deviation to Cadiz and its discharge of cargo there. I held that under the Carriage of Goods By Sea Act ("COGSA"), 46 U.S.C. §§ 1301-1314, Rascator was a carrier of the plaintiffs' cargoes, and the defendants were liable to the plaintiffs for the unreasonable deviation of the vessel and the transshipment expenses. The Ogden Fraser was also liable in rem to the plaintiffs.
Due to the Clause 8 and Clause 16 provisions, Ogden, as the vessel's owner, was entitled to be indemnified by its charterer Sanko for damages caused by the Ogden Fraser's deviation. Sanko was also entitled to indemnification by its charterer, Rascator. Having "pierced the corporate veil" of Rascator, I found Galin and Sipra personally liable for Rascator's actions. Intra-Span, as the agent of Rascator directly responsible for the cargo was also found liable. These judgments concerning the parties' rights to indemnification were affirmed on appeal.
I awarded attorneys' fees to Ogden in the amount of $84,411.98 against Rascator, Intra-Span, Galin, and Sipra, citing bad faith as the reason. Sanko was subsequently added as a party from whom Ogden could recover its attorneys' fees. Sanko itself was awarded attorneys' fees of $84,485.54 against Rascator, Galin, Intra-Span, and Sipra and was given an award entitling it to be indemnified for any amounts it might pay. Ogden. On February 8, 1985, Sanko paid $84,411.98 to Ogden in order to satisfy the judgment against it for attorneys' fees. Rascator, Galin, Intra-Span, and Sipra ...