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this opinion should not be published and is not precedent except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).
-2-
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.
-3-
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.
-4-
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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