Triton Container v. Baltic Shipping Co

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 95-31275
Summary Calendar
____________________

TRITON CONTAINER INTERNATIONAL
LIMITED,

Plaintiff,

versus

BALTIC SHIPPING COMPANY,

Defendant.

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NAVIOMAR S A DE C V

Plaintiff-Appellee,

versus

BALTIC SHIPPING COMPANY, in personam

Defendant-Appellant.

________________________________________________________________

Appeal from the United States District Court for the
Eastern District of Louisiana
(95-CA-427"G”)

.________________________________________________________________
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
August 1, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
 Baltic Shipping Company ("Baltic") appeals two orders of the

district court. Baltic first appeals the district court's order

granting summary judgment for Naviomar, S.A. de C.V. ("Naviomar"),

one of many parties to these consolidated actions.1 Baltic also

appeals the district court's refusal to stay proceedings pending

arbitration. We affirm.

This court reviews a grant of summary judgment de novo, using

the same standard applicable in the district court. E.g.,

Matagorda County v. Law, 19 F.3d 215, 217 (5th Cir. 1994). Summary

judgment is appropriate if the record discloses that there is no

genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. Id., FED. R. CIV. P.

56(c). The pleadings, depositions, admissions, and answers to

interrogatories, together with affidavits, must demonstrate that no

genuine issue of material fact remains. Id. If the record as a

1
We note that Baltic has noticed an appeal of a summary
judgment ruling that did not adjudicate all the claims and the
rights and liabilities of all the parties to these consolidated
actions. We further note that the district court did not certify
this issue for appeal pursuant to FED. R. CIV. P. 54(b). However,
because this is an admiralty case, we exercise our appellate
jurisdiction to review Baltic's summary judgment appeal pursuant to
28 U.S.C. § 1292(a)(3). Underwriters at Interest on Cover Note
JHB92M10582079 v. Nautronix, Ltd., 79 F.3d 480, 483 (5th Cir. 1996)
(in an admiralty case, it is not necessary for the order appealed
from to have determined all the rights and liabilities of all the
parties).

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whole could not lead a rational trier of fact to find for the

nonmovant, then there is no genuine issue for trial. Matagorda, 19

F.3d at 217.

Baltic argues that the district court erred in granting

summary judgment for Naviomar by usurping the factfinder's province

when it decided a disputed issue of fact. Specifically, Baltic

claims that the district court accepted as true the president of

Baltic's confirmation of Baltic's debt to Naviomar, while rejecting

a contradictory sworn affidavit of Baltic's treasurer.

Based on the record before us, we conclude that no rational

trier of fact could find for Baltic on this issue. We agree with

the district court's reasoning that the December 1, 1995 facsimile

communication of Baltic's president, the highest ranking officer of

the company, constitutes an admission of the full amount due and

owing from Baltic.2 The record contains no later retraction or

denial of this admission by Baltic's president. The earlier

affidavit of Baltic's treasurer does not create a genuine issue of

material fact worthy of trial, particularly in the light of the

2
Baltic's president transmitted the facsimile to Naviomar on
December 1, 1995, while this case was pending. The facsimile
states in pertinent part:

Please be informed that BSC confirms balance due to
you in the amount of USD 2,411,330.68 and we have
asked our lawyer co. Terriberry to pass it to the
Court of New Orleans.

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overwhelming corroborating evidence of Baltic's acknowledgement of

its debt to Naviomar. This evidence includes, among other things:

a September 8, 1995 facsimile from Baltic's president to Naviomar

that confirms Baltic's debt to Naviomar;3 the sworn affidavit of

Naviomar's president, which attests to Baltic's longstanding and

repeated recognition of its debt to Naviomar and to the September

8, 1995 facsimile from Baltic's president; and the sworn affidavit

of Naviomar's account manager, which states that numerous Baltic

representatives, including its treasurer and entire financial

department, regularly accepted and acquiesced to the monthly

statements of account prepared by Naviomar to reflect Baltic's

debt. Because there is no genuine issue for trial, the district

court's grant of summary judgment for Naviomar was proper.

We review de novo the district court's denial of Baltic's

motion to stay litigation pending arbitration. In re Complaint of

Hornbeck Offshore (1984) Corp., 981 F.2d 752, 754 (5th Cir. 1993).

The district court denied Baltic's motion because it found as a

3
The September 8, 1995 facsimile from Baltic's president
states in pertinent part:

... I confirm the debt of BSC [i.e., Baltic] to
Naviomar S.A.

We will settle the debt for the mutual
satisfaction and we are not going to Moscow
arbitration for this matter.

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fact that Baltic's president had waived in writing Baltic's

contractual right to arbitrate. The right to arbitrate, like other

contractual rights, may be waived. Price v. Drexel Burnham

Lambert, Inc., 791 F.2d 1156, 1158 (5th Cir. 1986). Based on our

review of the record, we conclude that the district court correctly

denied Baltic's motion to stay pending arbitration.

Accordingly, the district court's orders are

A F F I R M E D.

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