United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 23, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 04-30370
__________________________
KEYTRADE USA, INC.,
Plaintiff - Appellee,
versus
AIN TEMOUCHENT M/V, in rem; et al.,
Defendants,
SOCIETE NATIONALE DE TRANSPORTS MARITIME & COMPAGNIE NATIONALE
ALBERIENNE DE NAVIGATION MARITIME, in personam,
Defendant - Appellant.
___________________________________________________
Appeal from the United States District Court
For the Eastern District of Louisiana
___________________________________________________
Before JOLLY, DAVIS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
We must address whether a bill of lading incorporates a voyage charter’s arbitration clause.
We hold that it does, and reverse and remand with instructions to compel arbitration.
I.
A misguided and fateful shipment of urea set in motion a series of events that culminated in
this appeal. Societe Nationale de Transports Maritimes & Compagnie Nationale Algerienne de
1
Navigation Maritime (“CNAN”) is the owner of the bulk carrier Ain Temouchent M/V. On December
4, 2000, CNAN entered into a charter party with Progress Bulk Carriers, Inc. (“Progress Bulk”),
providing the Ain Temouchent to Progress Bulk for a period of six to ten months at a cost of $6,000
per day.1 The time charter contained a number of clauses and conditions, among them Clause 48,
which states that “[a]ll disputes arising out of this contract . . . shall be referred to arbitration in
London.”
Progress Bulk was to use the Ain Temouchent to transport cargo for other companies. In
March, 2001, three months after it entered into the time charter, Progress Bulk agreed to a voyage
charter with one such company, Keytrade A.G. (“KAG”). KAG is a Swiss corporation and the parent
company of Keytrade USA (“KUSA”), a Chicago-based subsidiary that sells fertilizer to customers
in the United States. When KUSA needed to ship cargo, it authorized KAG t o negotiate for and
obtain on its behalf the necessary transportation. The voyage charter between KAG and Progress
Bulk was for the shipment of roughly 22,000 metric tons of prilled urea, to be sent from Shuaiba,
Kuwait to New Orleans, Louisiana. Among the many provisions of the voyage charter was Clause
45, pursuant to which “[a]ny dispute arising under this Charter Party [was] to be referred to
Arbitration in London.” The voyage charter also specified that a “Congen” bill of lading was to be
utilized.
Per the Progress Bulk/KAG voyage charter, the urea was loaded onto the Ain Temouchent,
1
A charter party is “a specialized form of contract for the hire of an entire ship, specified
by name.” SCHOENBAUM, THOMAS J., ADMIRALTY AND MARITIME LAW, § 11-1 (4th ed. 2001).
There are two types of charter parties that will be referenced regularly in this opinion: voyage
charters and time charters. As their names suggest, a time charter provides for the charterer to
obtain the vessel for a fixed period of time, and under a voyage charter, the charterer obtains the
vessel for the length of a voyage. Id.
2
and KUSA was given a Congen bill of lading acknowledging such, on March 26, 2001. The bill of
lading was signed by the master of the Ain Temouchent on behalf of CNAN. Among the many
features of a Congen bill of lading is an arbitration incorporation clause, which states that “[a]ll terms
and conditions, liberties and exceptions of the Charter Party, dated as overleaf, including the Law and
Arbitration Clause, are herewith incorporated.” (emphasis added).
Shortly thereafter, the Ain Temouchent departed for the scheduled 42-day journey—the
shipment was to arrive befo re the beginning of the farming season, by May 10, 2001—to New
Orleans. The trip took longer than planned. Among the delays that befell the Ain Temouchent were
a seizure of the vessel by a creditor-supplier during a stop for repairs, and an unscheduled crew
change. In all, the trip was delayed 16 days—the Ain Temouchent ultimately arrived in New Orleans
on May 26, 2001.
Before the Ain Temouchent had docked in New Orleans, KUSA filed this lawsuit against both
Progress Bulk and CNAN in personam, and against the Ain Temouchent in rem. KUSA alleged
breaches of the contract of carriage (the bill of lading) and of defendants’ Carriage of Goods at Sea
Act obligations, seeking damages it suffered from the drop in market value of prilled urea. Progress
Bulk, invoking Clause 45 of its voyage charter with KAG, moved the district court to dismiss the
case and to compel arbitration. Because KUSA, and not KAG, filed the suit, the district court denied
Progress Bulk’s motion unless and until Progress Bulk could produce sufficient evidence to establish
an agency relationship between KAG and KUSA.
Progress Bulk ultimately produced that evidence, and reurged its motion to compel arbitration
in November, 2002. On this second motion, the district court determined that KUSA and KAG do
indeed have an agency relationship—a ruling that is not contested on appeal—and that, under the
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voyage charter, arbitration was proper between Progress Bulk and KUSA. Also in November, 2002,
CNAN moved, for the first time, to compel arbitration on theories of equitable estoppel. The district
court denied CNAN’s motion pending the conclusion of the KUSA-Progress Bulk arbitration, but
the court did not rule on the merits of the motion.
After KUSA settled its dispute with Progress Bulk, CNAN reurged its motion to compel
arbitration. In this second motion, CNAN abandoned its equitable estoppel rationale, instead pressing
an argument based on Cargill Ferrous International v. SEA PHOENIX M/V, 325 F.3d 695 (5th Cir.
2003), a case that had been decided after CNAN’s initial motion to compel arbitration. Under SEA
PHOENIX, a bill of lading may be found to incorporate an arbitration clause of the charter party, even
if one of the parties to the bill of lading was a nonsignatory to the charter party. The district court
denied the motion on the merits, finding SEA PHOENIX factually distinguishable. CNAN timely
appeals that ruling.
II.
This Court has jurisdiction pursuant to §§ 4 and 16 of the Federal Arbitration Act, 9 U.S.C.
§§ 4, 16(a)(1)(C) (2002), and § 28 U.S.C. 1291. The district court’s refusal to compel arbitration
is reviewed de novo. See, e.g., Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 428–29 (5th Cir.
2004).
III.
We must first consider whether CNAN had a right to compel arbitration with KUSA. After
concluding that it did, we address whether CNAN waived that right.
A.
As a general matter, an agreement to arbitrate must be in writing. See Sedco, Inc. v. Petroleos
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Mexicanos Nat’l Oil Co., 767 F.2d 1140, 1144–45 (5th Cir. 1985); see also THE CONVENTION ON
THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS, reprinted as Note to 9
U.S.C. § 201. CNAN concedes, as it must, that no such agreement exists between CNAN and
KUSA: although the time and voyage charters each include an arbitration clause, neither was between
CNAN and KUSA; while the bill of lading was an agreement between KUSA and CNAN, it did not
contain an arbitration clause.
Thus, CNAN’s only available argument is that the bill of lading incorporated the arbitration
clause from a charter party. Generally, “[a] bill of lading can incorporate a charter party if the bill of
lading specifically refers to the charter party.” Cargill v. GOLDEN CHARIOT M/V, 31 F.3d 316,
318 (5th Cir. 1994). Here, the bill of lading included an incorporation clause, but it did not specify
the charter party that it sought to incorporate, leaving both the name and date blanks empty.
Recently, this Court in SEA PHOENIX provided the analytical framework for situations where the
charter party is not explicitly identified. 325 F.3d at 698–99. In SEA PHOENIX, we held that,
where, as here, an incorporation clause is present in the bill of lading, the correct test is whether “the
bills of lading are in the hands of the charterer, and [] there is no confusion concerning who was the
charterer or which charter party the bills of lading sought to incorporate.” Id. (citing State Trading
Corp. of India v. Grunstad Shipping, 582 F. Supp. 1523, 1524 (S.D.N.Y. 1984)).
As an initial matter, we address, and reject, KUSA’s argument that the bill of lading was not
in the hands of the charter party. In SEA PHOENIX, the holder of the bill of lading was also a party
to the voyage charter. 325 F.3d at 697–98. Because KAG was a party to the voyage charter, but
KUSA was listed on the bill of lading, KUSA argues that the bill of lading did not “remain in the
hands of the charterer” as required under SEA PHOENIX. It is true that two different entities were
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parties to the bill of lading and the voyage charter. Due to the district court’s finding concerning the
KUSA/KAG agency relationship, however, KUSA’s argument presents a distinction without a
difference. KAG was empowered, among other things, to seek out and procure transport for
KUSA’s goods. As the district court found, KUSA does not charter its own vessels, rather, it relies
on KAG to negotiate transportation. In short, because the district court found that KAG and KUSA
were legally intertwined entities—a decision that KUSA does not now appeal—the fact that KUSA,
and not KAG, held onto the bill of lading has no legal import.
Therefore, the precise question we are left with is whether there is “no confusion” from the
bill of lading as to which charter party governed the rights of the parties. In order to answer this
question, it is helpful to look at the parallel facts of SEA PHOENIX. In SEA PHOENIX, Serene was
the owner of the vessel, the M/V Sea Phoenix, which it time chartered to Western. Western, in turn,
entered into a voyage charter with Cargill to use the Sea Phoenix to transport a shipment of steel
coils. Id. at 698. The only contract between Serene and Cargill was the bill of lading, which Serene
transferred to Cargill when the shipment of coils was loaded. Id. The voyage charter included an
arbitration clause, but the bill of lading did not. The bill of lading did contain the following
incorporation clause, identical to the one in this case: “All terms and conditions, liberties and
exceptions of the Charter Party, dated as overleaf, including the Law and Arbitration Clauses, are
herewith incorporated.” Id.
The Court found that there was no confusion as to the charter party it sought to incorporate.
As the Court stated:
First, Cargill received and continued to hold bills of lading issued pursuant to the Cargill-
Western Bulk voyage charter. Second, the agent who signed the bills of lading . . . received
its agency authority solely from a term in the voyage chart er. Third, the bills of lading
indicate freight is to be paid pursuant to the charter party. This provision depends on the
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incorporation of the Cargill-Western Bulk voyage charter to retain any meaning. Fourth, the
Cargill-Western Bulk voyage charter, the only charter party that Cargill signed, requires all
bills of lading issued under the voyage charter to incorporate, among other things, the voyage
charter’s arbitration clause.
Id. at 699 (internal citations omitted) (emphasis added). There is a similar factual basis here. It is
the voyage charter that specifies a Congen bill of lading was to be used. See Clause 9. It is the
voyage charter that describes how the bill of lading should be marked vis-a-vis freight. See Clause
18 (mandating markings of “CLEAN ‘ON BOARD’/ FREIGHT PAYABLE AS PER CHARTER
PARTY”). It is the voyage charter that grants the captain of the Ain Temouchent the authority to
sign the bill of lading. See Clause 9. Indeed, there is nothing in the CNAN/Progress Bulk time
charter that speaks of the bill of lading. With only one (of two) charter parties speaking to shipment
and the bill of lading, it is difficult to discern how there could be “confusion” as to which charter party
the bill of lading’s incorporation clause referred.
KUSA offers nothing to rebut these facts. Instead, KUSA focuses primarily on the fourth
factor from Cargill—i.e., that the voyage charter does not include provisions requiring incorporation
of the arbitration clause into the bills of lading. Parroting the district court, KUSA contends that the
Progress Bulk/KAG voyage charter does not require the incorporation of an arbitration provision into
any bills of lading issued under that charter party. For example, Clauses 44 and 45 discuss
incorporation and arbitration, respectively, but neither discusses incorporation of arbitration into the
bills of lading issued under the voyage charter. Therefore, KUSA concludes that “there is confusion
concerning who in fact was the charterer or which charter party the bills of lading sought to
incorporate.”
Only if this Court were to look solely at the voyage charter, and ignore the language of the
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bill of lading, could this interpretation be valid.2 Such a narrow inquiry, however, is not justified
under SEA PHOENIX and its predecessors. Analyzing the substance of the bill of lading is a
fundamental component of our analysis; as noted above, this Court has held that if a bill of lading
specifically refers to the charter party, then the charter party is deemed incorporated (to the extent
referenced in the bill of lading). GOLDEN CHARIOT, 31 F.3d at 318. The underlying concern for
the “no confusion” requirement is that a third party, which did not participate in the formation of, or
is otherwise unaware of, the charter party, should not be held to terms of which it had no notice. SEA
PHOENIX, 325 F.3d at 698 (quoting Cargill B.V. v. S/S OCEAN TRAVELLER, 726 F. Supp. 56,
59 (S.D.N.Y. 1989)); see also Associated Metals & Minerals Corp. v. M/V Venture, 554 F. Supp.
281, 283 (D.C. La. 1983) (“[T]hird parties, since they are strangers to the charter party, should be
able to rely on clean bills of lading free from the restraint of agreements between the shipowner and
charterer, as to which the third parties have no notice.”). The original charter party, by itself, is poor
evidence of whether a third-party was aware of the charter party’s terms, as many third-parties will
be aware of the charter party only after the charter party’s formation, if at all. SEA PHOENIX, with
its factual discussion resting in large part on the bill of lading, is an example of this bill-centric inquiry.
325 F.3d at 698; see also id. at 698–99 (noting that there is incorporation when there is “no
2
Even if our holding were to rest entirely on whether the voyage charter authorized
incorporation, the issue is not nearly as clear as KUSA contends. For example, the voyage
charter explicitly mandates the use of a Congen bill of lading, a form which includes the
incorporation language. See Clause 9. Given the negotiations that are evident from the face of
the voyage charter—numerous pre-printed clauses are edited or deleted, and other supplemental
clauses are added—Clause 9 is not mere boilerplate. Because these are sophisticated parties, if
we were to look solely at the intention of the parties from the voyage charter, we would be apt to
conclude that they intended the incorporation. Steel Warehouse Co. v. Abalone Shipping Ltd. of
Nicosai, 141 F.3d 234, 237 (5th Cir. 1998) (noting that the Congen bill of lading is a “common,
internationally recognized” instrument).
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confusion concerning . . . which charter party the bill of lading sought to incorporate”) (emphasis
added). There are situati ons, present in SEA PHOENIX, State Trade, as well as here, where the
examination of the charter party is relevant and necessary. Nevertheless, in such situations, it must
be compared with the terms of the bill of lading and cannot rest solely on the charter’s terms.
Thus, whether the voyage charter provides that all bills of lading should incorporate
arbitration provisions—the thrust of both KUSA’s and the district court’s analyses—may be relevant,
but it is typically not dispositive.3 As shown above, it is clear that the March 26, 2001 bill of lading
refers back to the Progress Bulk/KAG voyage charter. While that determination would be buttressed
if the voyage charter included provisions regarding the incorporation of arbitration, see State Trading,
582 F. Supp. at 1524, the lack of such clauses does not change our fundamental conclusion.
Finally, KUSA argues that Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347 (5th Cir.
2003), changes the SEA PHOENIX calculus. Although KUSA superficially stresses Bridas’s
importance, it provides little substantive analysis as to the case’s impact. In fact, Bridas neither
mentions SEA PHOENIX, nor deals with bills of lading or other contracts of carriage—indeed, it is
not a maritime case at all. Bridas does discuss arbitration agreements, and as far as we can discern,
the following portion of KUSA’s brief captures the essence of its Bridas argument: “‘[Under Bridas,]
who is actually bound by an arbitration agreement . . . [is] expressed in the terms of the agreement,’
and [one] only looks to the four corners of the document in finding the answer.” Appellee Brief at
18 (quoting Bridas, 345 F.3d at 355). This can hardly be stated as a novel proposition of law, for,
as we have noted, a first principle of determining the existence of a right to compel arbitration is to
3
In some circumstances, not applicable here, the parties may explicitly state in the charter
party that the bill of lading should be issued “without prejudice to the charter party.”
SCHOENBAUM, ADMIRALTY AND MARITIME LAW at § 11-6.
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look for a written agreement. See, e.g., Sedco, 767 F.2d at 1144–45. Moreover, to the extent that
KUSA argues that an agreement to arbitrate may only be found from the four corners of the
document, its faith is misplaced. As the court in Bridas wrote, there are exceptions to the four
corners rule, one of which is for the inclusion of nonsignatory principals/agents. Bridas, 345 F.3d
at 356 (noting that, among the “[s]ix theories for binding a nonsignatory to an arbitration agreement
[that] have been recognized” is the presence of an agency relationship). Here, the district court, in
an unappealed order, found that KAG and KUSA had an agency relationship.
Because there was no confusion as to which charter party the bill of lading sought to
incorporate, we hold that the Progress Bulk/KAG voyage charter’s arbitration clause established in
CNAN a right to compel arbitration with KUSA.
B.
Having determined that the bill of lading provided CNAN a right to compel arbitration, we
next turn to the question of whether CNAN has waived that right. See, e.g., Williams v. Cigna Fin.
Advisors, Inc., 56 F.3d 656, 661 (5th Cir. 1995) (“‘[T]he right to arbitration, like any other contract
right, can be waived.’”) (quoting Miller Brewing Co. v. Fort Worth Distrib. Co., Inc., 781 F.2d 494,
497 (5th Cir. 1986)).
A party waives its right to arbitration when, among other things, it invokes the judicial
machinery to “the detriment or prejudice of the other party.” Republic Ins. Co. v. PAICO
Receivables, LLC, 383 F.3d 341, 344 (5th Cir. 2004). “[T]he party must, at the very least, engage
in some overt act in court that evinces a desire to resolve the arbitrable dispute through litigation
rather than arbitration.” Id. (quoting Subway Equip. Leasing Cor. v. Forte, 169 F.3d 324, 329 (5th
Cir. 1999).
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Despite the possibility of waiver, “[t]here is a well-settled rule in this circuit that waiver of
arbitration is not a favored finding, and there is a presumption against it.” Steel Warehouse Co. v.
Abalone Shipping Ltd. of Nicosai, 141 F.3d 234, 238 (5th Cir. 1998); see also Miller Brewing, 781
F.2d at 496–97 (“[Q]uestions of arbitrability must be addressed with a healthy regard for the federal
policy favoring arbitration.”) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Co., 460
U.S. 1, 24 (1983)) (internal quotations omitted). That burden “falls even more heavily” when the
party seeking arbitration “has included a demand for arbitration in its answer.” Steel Warehouse, 141
F.3d at 238 (quoting Southwest Indus. Import & Export, Inc. v. Wilmod Co., 524 F.2d 468, 470 (5th
Cir. 1975)). In the Eighth Defense of its answer to KUSA’s complaint, CNAN specifically called on
the district court to refer the case to arbitration. Consequently, KUSA must overcome a particularly
heavy presumption against waiver.
KUSA contends that CNAN “invoked” the judicial machinery for two reasons, neither of
which is persuasive.4 First, KUSA argues that CNAN waived its right because it filed an extensive
summary judgment motion—in excess of 100 pages—with little evidence of an indication for
arbitration. KUSA offers no legal authority for why a motion for summary judgment, filed from a
defensive posture, can be characterized as an invocation of judicial process. Even assuming,
arguendo, that it is, CNAN concurrently filed a motion to compel arbitration in the alternative to its
4
KUSA does make other, frivolous arguments. For example, KUSA argues that because
CNAN’s second motion to compel was based entirely on SEA PHOENIX, a case that was decided
after Progress Bulk’s motion for arbitration, it waived its right to arbitration. Even had CNAN,
for the first time, asked for arbitration on a newly developed basis some months or years after the
initial complaint, that would not speak to waiver. Rather, CNAN would merely be exercising a
newly vested right. One need not consider that scenario, however, as it is true both that CNAN
(i) included a claim for arbitration in its original answer, and (ii) filed an initial motion to compel
arbitration based on theories of equitable estoppel.
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motion for summary judgment, removing any doubt as to waiver. Second, KUSA argues that CNAN
participated in a number of discovery requests. Although CNAN did comply, sometimes under court
order, with KUSA’s requests for discovery, a party may participate in the discovery process so long
as it does not “shower[] [the opposing party] with interrogatories and discovery requests.” Steel
Warehouse, 141 F.3d at 238. Our review of the record reveals that the only evidence of CNAN’s
affirmative participation was its submission of a witness list should the case go to trial. This hardly
constitutes evidence of waiver.
IV.
The judgment of the district court is REVERSED and REMANDED, with instructions to
enter an order granting CNAN’s motion to compel arbitration.
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