meaning." Seiden Assocs., 959 F.2d at 428.
II. The Question of the Incorporation of Clause 46
Defendants further maintain that Clause 46 does not bind the parties because it is not fully incorporated into the Charter Party. Clause 38 expressly states that the General Clause Paramount is "deemed to be incorporated into this Charter Party." In contrast, Clause 46 does not expressly incorporate its Clause Paramount, but merely states, "U.S. Clause Paramount should read as follows . . ." The defendants ignore, however, one major detail that overrides the distinction between the two clauses. The very front page of the contested Charter Party, line 21, provides: "Additional clauses from 18 to 49 (both inclusive) are deemed to be fully incorporated in this Charter Party." This provision therefore expressly incorporates Clause 46, and subsequently limits the arbitration clause in Clause 29 to claims unrelated to cargo damage.
In cases where the courts have refused to enforce a particular provision, its incorporation was questionable because of an ambiguity in the contract's language. For example, in Associated Metals & Minerals Corp. v. S/S Jasmine, 983 F.2d 410 (2d Cir. 1993), the Court held that a mere reference to the Carriage of Goods by Sea Act in a Charter Party was not sufficient to incorporate the limitations contained in the statute.
Rather, the Court stated that "the parties must clearly indicate their intention to incorporate the provision into the charter party itself." Id. at 413. Unlike the contract in Jasmine, the instant Charter Party does not suffer from the same level of uncertainty. Line 21 of the Charter Party unambiguously expresses the parties' intent by using the explicit language of "fully incorporated" to ensure the integration of clauses 18 to 49 into the agreement. Thus, the Court is not persuaded by the defendants' attempt to disqualify Clause 46 as unincorporated when the Charter Party explicitly states, that it is, in fact, incorporated.
For the reasons discussed above, both Canadian Forest's motion to dismiss and Fortune Sea's and Canadian Forest's motion to stay the action pending arbitration are DENIED. At the conference, the parties are to bring a case management plan for discussion.
Dated: New York, New York
July 18, 1997