Carcich v. Rederi A/B Nordie

Carcich v. Rederi A/B Nordie

Opinion

 [*693]  KAUFMAN, Circuit Judge:

These consolidated appeals have their source in actions brought to recover damages for injuries allegedly suffered by longshoremen while loading or discharging cargo from vessels time-chartered by Cunard Steamship Company, Ltd. (Cunard), from the owners, the appellees here. The longshoremen sued the owners, who in turn filed third-party complaints against Cunard. Judge Cannella, S.D.N.Y., denied Cunard's motions to stay the third-party actions pending arbitration, on the ground that Cunard, by its participation in pre-trial proceedings and because of its delay in moving for the stays, waived whatever right to arbitration might have existed under the charter parties between Cunard and the appellees. The district court  [*694]  thus never decided whether the underlying disputes were properly subject to arbitration under the charter parties. We reverse and remand to the district court for a determination of this question.

Our ratio decidendi requires an elucidation of the litigation background. Plaintiff Carcich was allegedly [**2]  injured on January 28, 1963, while working aboard the SS Nordic, which was then owned by Rederei A/B Nordic (but sued as Rederi A/B Nordie) and under time charter to Cunard. He filed his complaint on February 4, 1964, naming both the shipowner and Cunard as defendants. The shipowner's answer contained a cross-complaint against Cunard, which Cunard answered on July 15, 1964, alleging that the claim was one which should be submitted to arbitration in accordance with the terms of the charter party. ¹ On September 2, 1964, Carcich's complaint against Cunard was dismissed on its motion and the shipowner's cross-complaint was ordered to be designated a third-party complaint. While this motion was pending, Carcich filed his note of issue on August 13, 1964. On November 19, 1965, over a year later, a pre-trial conference was held, and still another year almost passed before a pre-trial order, consented to by all the parties, was filed on June 14, 1966. This order recited, inter alia, that Cunard was still maintaining that its dispute with the owners was subject to arbitration under Clause 23 of the time charter agreement. Five months later Cunard formally moved for a stay pending arbitration, [**3]  ² but on January 5, 1967, Judge Cannella denied the motion; this appeal followed.

The procedural history of the suit instituted by Calderon is somewhat more complex. The alleged injury to Calderon occurred on October 1, 1963, while he was working on the M/S Crux, then under time charter to Cunard from Det. Bergenske Dampskibsselskab, the owner and one of the appellees. He sued only the shipowner, who, on June 2, 1964, served Cunard with a third-party complaint alleging two causes of action -- (1) for indemnity because of a breach of warranty of workmanlike service (in Cunard's capacity as stevedore ³), and (2) violation of the charter party. Cunard's answer denied [**4]  liability, and asserted as an affirmative defense to the second cause of action that it should be referred to arbitration in London pursuant to the charter party. ⁴ Several months later, Calderon filed a note of issue and shortly thereafter Cunard produced certain documents pursuant to the longshoreman's motion for discovery. Pre-trial conferences were held in November 1965 and March 1966, and Cunard formally moved in November 1966 to stay both of Det. Bergenske Dampskibsselskab's causes of action pending arbitration. Judge Cannella denied the motion on January 5, 1967. Thereafter, a pre-trial order similar to that entered in Carcich (reciting that Cunard contended the action should be stayed pending arbitration) was signed by Judge Motley, who, presumably, was not aware that over three months earlier Judge Cannella had refused to issue a stay.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.