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ALVENUS SHIPPING CO. v. DELTA PETROLEUM LTD.

February 10, 1994

ALVENUS SHIPPING CO., LTD., Plaintiff,
v.
DELTA PETROLEUM (U.S.A.) LTD., FLOTA PETROLERA ECUATORIANA, HALLEY, CALKINS & AVALLONE, P.C. and FLEET NATIONAL BANK, Defendants. FLOTA PETROLEUM ECUATORIANA, Plaintiff, v. DELTA PETROLEUM (U.S.A.) LTD., ALVENUS SHIPPING CO., LTD., and FLEET NATIONAL BANK, Defendants.



The opinion of the court was delivered by: LORETTA A. PRESKA

 1. Plaintiff, Alvenus Shipping Co. Ltd. ("Alvenus"), is a foreign corporation organized under the laws of England and Wales, with its principal place of business in London. (Statement of Antony Stewart Crawford In Support Of Motion For Provisional Remedy, dated August 8, 1993, hereinafter referred to as the "Crawford Statement," at P 3.)

 2. Defendant Delta Petroleum (U.S.A.) Ltd. ("Delta") is a New York corporation with an office and principal place of business in New York. (Statement of Spiros S. Milonas In Opposition to Motion For Provisional Remedy, dated August 27, 1993, at P 1.)

 3. Defendant Halley, Calkins & Avallone, P.C. (the "Law Firm"), is a New York law firm. The Law Firm represents defendant Flota Petrolera Ecuatoriana ("Flopec"), an agency of the Government of Ecuador engaged in the oil business. Defendant Fleet National Bank ("Fleet Bank") is a bank with offices or branches in New York.

 4. Alvenus chartered the M/T HALIFAX to Delta pursuant to a charter party contract dated November 30, 1990, at New York, New York (the "Head Charter"). (Crawford Statement, P 5; Affidavit of Louis P. Sheinbaum In Support Of Motion For Injunction Or Attachment, sworn to on August 9, 1993, hereinafter the "Sheinbaum 8/9/93 Aff." at P 3.)

 5. Delta subchartered the M/T HALIFAX to Flopec pursuant to a charter party contract dated April 30, 1990 (the "Subcharter"). On August 30, 1991, the M/T WHITE SEA was substituted for the M/T HALIFAX in both charter parties. (Crawford Statement, at P 6.)

 6. Charter party disputes arose between Flopec and Delta under the Subcharter and between Delta and Alvenus under the Head Charter. Pursuant to a submission agreement dated September 22, 1992, Flopec and Delta arbitrated their disputes in New York (the "Flopec Arbitration"). (Crawford Statement, at P 7, Exh. 1.) On July 9, 1993, the arbitrators rendered an award in the Flopec Arbitration granting Delta damages in the amount of $ 407,737.40. (Crawford Statement, at P 4, Exh. 2.) The Law Firm represented Flopec in that arbitration and currently holds in its escrow account with Fleet Bank $ 407,737.40 received from Flopec to pay the Flopec Arbitration award (the "Funds"). (Crawford Statement, at P 8; see Opposing affidavit of Tulio R. Prieto, Esq., sworn to on August 30, 1993 ("Prieto Aff."), Exh. C.) The Funds constitute the proceeds of the award in the Flopec Arbitration in favor of Delta (see Prieto Aff., Exh. C).

 7. On or about September 28, 1992, Delta returned the WHITE SEA to Alvenus. Alvenus protested the redelivery as being premature (Crawford Statement, Exh. 3) and sent a telex to Delta on September 29, 1992, which outlined certain amounts allegedly owed to Alvenus as of that time. (Crawford Statement, Exh. 4.) The telex and calculation included, inter alia, Alvenus' performance claim for the first year of the Head Charter for approximately $ 150,000; a claim for $ 70,990.77 for additional pollution insurance premiums paid by Alvenus; and noted that a performance claim would be added later for the second year of the Head Charter. (Crawford Statement, Exh. 4.)

 8. Delta responded to the claims by referring Alvenus to the then-pending Flopec arbitration. (Crawford Statement, Exh. 5.) Delta advised Alvenus that it intended to include Alvenus' outstanding claims in that proceeding. Delta further advised Alvenus that if the claims were valid, Delta saw "no reason for [Alvenus] not to be reimbursed," and requested that the documents for the insurance premium claim and second year performance claim be immediately forwarded to New York. (Id.)

 9. On August 8, 1992, Alvenus demanded arbitration against Delta in London (the "London Arbitration"), named its arbitrator, and called upon Delta to name its arbitrator in accordance with the Head Charter. (Crawford Statement, P 10, Exh. 6.) It appears that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "Convention") is applicable to the London Arbitration. See 9 U.S.C. ยง 201 (West Supp. 1993). Prior to the commencement of this action in August of 1993, Delta had not responded to Alvenus' demand, designated an arbitrator or taken any other step with respect to the London Arbitration (Crawford Statement, P 10).

 10. On October 12, 1992, i.e., four days after receiving Alvenus' first arbitration demand, Mr. Milonas of Delta telephoned Mr. Crawford of Alvenus. Although several of the statements allegedly made in that call are disputed, Mr. Crawford asserts Mr. Milonas said that the only source of money to pay the claims of Alvenus was the money to be recovered in the Flopec Arbitration. (Crawford Statement, at P 11.) Delta does not deny that statement.

 11. Several of the claims on which Delta recovered in the Flopec Arbitration arise out of or are the same claims as Alvenus' claims against Delta in this action and the London Arbitration. For example, on October 13, 1992, Delta telexed Alvenus requesting additional documents "supporting OPA [Oil Pollution Act of 1990] additional premium for U.S. calls as well as the performance you claim for the second year." (Crawford Statement, at P 12, Exh. 7.) Alvenus thereafter complied and sent Delta its documents in support of its performance claim and the Insurance claim in the amount of $ 70,990.77. (Crawford Statement, at P 13.)

 12. Alvenus presented the Insurance claim to Delta in the amount of $ 70,990.77, and Delta submitted the exact claim in the exact amount and recovered the exact amount against Flopec in the Flopec Arbitration. (Crawford Statement, at P 13, Exhs. 8 and 9.) That same claim is contained in the present complaint and in the London Arbitration. See Complaint in 93 Civ. 5535 ("Complaint") at PP 14, 18; Sheinbaum 8/9/93 Aff. P 6, Exh. 3.

 13. The performance claim was a claim for a bonus allegedly due Alvenus under the Head Charter for exceeding the performance provisions of the Head Charter. (Crawford Statement, at P 13.) Alvenus submitted a performance claim of approximately $ 230,000 and supporting documents to Delta, and Delta passed Alvenus' calculations and documents for the performance claim to Flopec in the Flopec Arbitration. (Crawford Statement, Exh. 13; see Sheinbaum 8/9/93 Aff. at P 7; see also Reply Affidavit of Louis P. Sheinbaum, sworn to on September 8, 1993 (hereinafter "Sheinbaum 9/8/93 Aff.", PP 6 and 7).) Flopec and Delta compromised the claim and stipulated its value to be $ 198,643, and this amount was awarded by the arbitrators in the Flopec Arbitration. (Crawford Statement, P 13, Exh. 8 and Exh. 2, at 3; Sheinbaum 9/8/93 Aff. at P 7 n. 1.) That same performance claim is included in the Complaint and in the London Arbitration. See Complaint PP 7-8; Sheinbaum 8/9/9 Aff. P 7, Exh. 3.

 14. After obtaining an award against Flopec in the Flopec Arbitration, Delta filed a petition to confirm the arbitration award on or about July 20, 1993, In the Matter of the Arbitration Between Delta Petroleum (USA) Ltd. and Flota Petroleum Ecuatoriana, 93 Civ. 4982. (Crawford Exh. 13.) The award was confirmed on ...


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