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Case Summary — E. B. Michaels & Ralph Michaels v. Mariforum Shipping, S.A.

Factual and Procedural Background

In 1974 Charterer (E. B. Michaels and Ralph Michaels, on their own behalf and as agents for former shareholders of Hyman-Michaels Company) entered a two-year time charter for the M/V Leslie with Owner (Mariforum Shipping, S.A.). The vessel experienced a series of mishaps and, in 1975, Charterer unilaterally terminated the charter on grounds of commercial frustration while approximately one year remained on the charter.

Owner refused demands for restitution of hire payments and Charterer initiated arbitration pursuant to the charter party. Charterer filed six claims seeking about $175,000; Owner filed six counterclaims for over $1,695,000. After ten hearings over two years, a three-member arbitration panel issued a "Decision Interim Award" dated July 6, 1979, with one arbitrator dissenting in part. The interim award: (a) held Charterer liable on four of Owner's six counterclaims; (b) decided one Owner counterclaim in Charterer's favor; (c) deferred decision on Owner's damages for the counterclaims and reserved decision on one counterclaim; and (d) did not decide any of Charterer's claims. Subsequent hearings addressing damages and Charterer's claims were said to have been held after the interim award.

Charterer petitioned the U.S. District Court for the Southern District of New York under 9 U.S.C. § 10 to vacate the interim award, to stay the arbitration, and to require a de novo arbitration before a new panel. The district court denied the petition. Charterer appealed. The Court of Appeals (Feinberg, C.J., Friendly and Timbers, JJ.) reviewed whether the district court erred in reviewing the interim award and concluded that the district court should have dismissed the petition as premature; the Court vacated the district court's judgment and remanded with instructions to dismiss, and awarded costs to appellee.

Legal Issues Presented

  1. Whether a district court may review and vacate an interlocutory or interim arbitration award under 9 U.S.C. § 10(d) when the arbitrators did not intend the award to be final.
  2. Whether the arbitrators' failure to decide Charterer's claims simultaneously with Owner's counterclaims constituted "misbehavior" warranting vacatur under 9 U.S.C. § 10(c).
  3. Whether a district court has authority to entertain challenges to arbitrators' rulings, qualifications, or partiality before the arbitration concludes and a final award is rendered.

Arguments of the Parties

Appellant (Charterer)

  • Argued that the interim award should be vacated under 9 U.S.C. § 10(d) because it was not "mutual, final, and definite."
  • Contended that the arbitrators' refusal to decide Charterer's claims simultaneously with Owner's counterclaims was "misbehavior" under 9 U.S.C. § 10(c), because the parties had stipulated that liability issues were to be decided simultaneously and prior to damages hearings.
  • Sought a stay of arbitration, vacatur of the interim award, and de novo arbitration before a new panel.

Appellee (Owner)

  • Asserted that the interim award was not final and thus not subject to vacatur under § 10(d).
  • Contended that the arbitrators had broad discretion to decide the order of issues and that postponing Charterer's claims to the damages phase was reasonable because Charterer's claims depended on the disposition of Owner's counterclaims.
  • Argued that interlocutory judicial review undermines arbitration procedures and facilitates delay and tactical disruption (characterizing Charterer's approach as a "war of attrition").

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mobil Oil Indonesia Inc. v. Asamera Oil (Indonesia) Ltd., 43 N.Y.2d 276, 401 N.Y.S.2d 186, 372 N.E.2d 21 (1977) Definition of a "final" arbitration award (an award intended by arbitrators to be complete determination of all claims submitted). Used to conclude the interim award was not "final" because it did not resolve all claims or damages, and so § 10(d) did not apply.
Puerto Rico Maritime Shipping Authority v. Star Lines Ltd., 454 F.Supp. 368 (S.D.N.Y. 1978) That a claim is completely determined only when both liability and damages are decided. Cited to support the conclusion that the interim award, which left damages undecided, was not a final disposition of claims.
The Hartbridge, 57 F.2d 672 (2d Cir. 1932) (per curiam) Illustrative authority for consulting state decisions in interpreting arbitration review where federal precedents are sparse. Referenced in a discussion of consulting New York law alongside federal law; no separate substantive rule adopted beyond that practice.
Island Territory of Curacao v. Solitron Devices, 356 F.Supp. 1 (S.D.N.Y.), aff'd, 489 F.2d 1313 (2d Cir. 1973) Support for consulting New York decisions and for policies limiting interlocutory review. Listed among authorities consulted; used to show precedent for limiting interim review.
Travelers Insurance Co. v. Davis, 490 F.2d 536 (3d Cir. 1974) That a district court lacks power to review interlocutory rulings by an arbitration panel. Cited as authority supporting the proposition that judicial review is unavailable until an award has been made.
Compania Panemena Maritima v. J. E. Hurley Lumber Co., 244 F.2d 286 (2d Cir. 1957) District courts should not act as appellate tribunals during ongoing arbitration; interlocutory relief wastes time and delays arbitration. Relied upon for policy reasons against interlocutory judicial review and to support dismissal of premature petitions.
Luff v. Ryan, 128 F.Supp. 105 (D.D.C. 1955) A district court is without authority to review arbitrators' rulings prior to the making of an award. Quoted to support the jurisdictional rule that review must await a final award.
Marc Rich Co. v. Transmarine Seaways Corp. of Monrovia, 443 F.Supp. 386 (S.D.N.Y. 1978) Challenge to arbitrators' qualifications or partiality cannot be entertained until after arbitration concludes and an award is rendered. Cited to support the rule that attacks on arbitrator qualifications are premature before a final award.
Catz American Co. v. Pearl Grange Fruit Exchange, Inc., 292 F.Supp. 549 (S.D.N.Y. 1968) Prematurity of attacking arbitrators' qualifications before conclusion of arbitration. Used as additional authority that such challenges must await final award.
Petition of Dover Steamship Co., 143 F.Supp. 738 (S.D.N.Y. 1956) Prematurity doctrine for challenges to arbitrators before final award. Cited for the same proposition that district courts should not entertain such attacks mid-arbitration.
Albatross S.S. Co. v. Manning Bros., 95 F.Supp. 459 (S.D.N.Y. 1951) That attacks on arbitrator qualifications or partiality are premature before the arbitrators render an award. Referenced as part of established authority barring premature challenges.
Sportswear, Ski-Suits Waterproof Garment Workers' Union, Local 246 v. Evans Mfg. Co., 318 F.2d 528 (3d Cir. 1963) Cited by appellant; relates to interlocutory matters in arbitration. The court observed that, if anything, the case supports the result here; to the extent any language approves interlocutory review, the court disagreed with that aspect.
In the Matter of Cephalonian Shipping Co., S/A, No. 79-0334, 1979 A.M.C. 1451 (S.D.N.Y. 1979) District court interlocutory rulings in arbitration context (cited by appellant). The court noted the citation but stated if it suggested interlocutory review was permissible, the panel respectfully disagreed with that view.
Aerojet-General Corp. v. American Arbitration Ass'n, 478 F.2d 248 (9th Cir. 1973) Dicta suggesting interlocutory review of certain interim rulings (e.g., place of hearing) might be justified in extreme cases causing irreparable injury. The court acknowledged the dictum but declined to consider whether the extreme-case exception applies because that issue was not presented.

Court's Reasoning and Analysis

The Court of Appeals proceeded in several analytical steps:

  1. Determination of finality: The court explained that an arbitration award is "final" only if the arbitrators intended it to be their complete determination of all claims submitted. Citing Mobil Oil and Puerto Rico Maritime, the court found the interim award here was not final because it (a) did not decide any of Charterer's claims and (b) left damages undecided for the Owner's counterclaims the arbitrators sustained.
  2. Inapplicability of 9 U.S.C. § 10(d): Because the interim award was not intended to be final, § 10(d)—which authorizes vacatur where arbitrators "imperfectly execute" their powers so that a mutual, final, and definite award was not made—did not apply. Vacatur under § 10(d) presupposes an award that purports to be final but is defective; it does not authorize review of an interim ruling that was not meant to be final.
  3. Jurisdictional bar to interlocutory review under the Federal Arbitration Act: The court emphasized the statutory scheme of the FAA (9 U.S.C. §§ 1 et seq.) which contemplates post-award judicial remedies (vacatur under § 10; modification/correction under § 11). It cited precedent (Travelers, Compania Panemena, Luff) holding that district courts lack authority to review arbitrators' interim rulings prior to a final award. Thus, challenges to arbitrators' rulings must await an award.
  4. Prematurity of challenges to arbitrators' qualifications/partiality: The court reiterated established authority that attacks on arbitrators' qualifications or partiality are premature until after the arbitration's conclusion and a final award has been rendered (citing several S.D.N.Y. decisions).
  5. Policy considerations: Beyond statutory and precedent-based rules, the court noted policy reasons against interlocutory review. Judicial intrusion into ongoing arbitrations dissipates arbitration's efficiencies, invites delay and tactical conduct, and undermines the purpose of conserving time and resources. The court observed this arbitration had already been protracted (ten hearings over two years) and declined to compound the process with interlocutory judicial review.
  6. Conclusion as to the district court's action: Because the district court entertained and decided the merits of Charterer's non-§10(d) challenges rather than dismissing the petition as premature, the Court of Appeals held that the correct course was dismissal for lack of power to review the interim award. Accordingly, the appellate court vacated the district court judgment and remanded with instructions to dismiss the petition.

Holding and Implications

Holding: The Court of Appeals vacated the district court's judgment and remanded with instructions to dismiss Charterer's petition as premature because the interim arbitration award was not final and the district court lacked authority under the Federal Arbitration Act to review interlocutory arbitration rulings.

Implications:

  • Direct effect: The district court must dismiss the petition to vacate the interim award for lack of jurisdiction to entertain interlocutory review; the Court of Appeals awarded costs to appellee because the district-court proceeding was premature.
  • Practical consequence noted by the court: Charterer may, following a final award, seek judicial review of issues previously considered by the district court; the court acknowledged possible duplication of effort in this instance but emphasized that denying interlocutory review preserves the advantages and efficiency goals of arbitration.

This summary is based exclusively on the content of the provided opinion.

IN THE MATTER OF THE ARBITRATION BETWEEN E. B. MICHAELS AND RALPH MICHAELS, ON THEIR OWN BEHALF AND AS AGENTS FOR THE FORMER SHAREHOLDERS OF HYMAN-MICHAELS COMPANY, CHARTERER, PETITIONER-APPELLANT, AND MARIFORUM SHIPPING, S.A., OWNERS OF THE M/V LESLIE UNDER A TIME CHARTER PARTY DATED APRIL 9, 1974, RESPONDENT-APPELLEE.

FEINBERG, Chief Judge:

This case requires us to consider whether a district court erred in reviewing an interim award in arbitration. E. B. Michaels and Ralph Michaels, on their own behalf and as agents for the former shareholders of the Hyman-Michaels Company (Charterer), appeal from a memorandum decision of the United States District Court for the Southern District of New York, Lloyd F. MacMahon, J., that denied their petition under 9 U.S.C. § 10 for an order vacating a decision and interim award in arbitration. As will be seen below, we believe that the district judge correctly refused to vacate the award. However, rather than reaching the merits of Charterer's claims, he should simply have dismissed the petition as premature. Therefore, we vacate the judgment of the district court and remand with instructions to dismiss the petition.

I.

The relevant facts are not in dispute. In 1974, Charterer entered into a two-year time charter party for the M/V Leslie with appellee Mariforum Shipping, S.A. (Owner). Shortly thereafter, the Leslie suffered the first of a series of mishaps that were to plague the ship during the following months. In 1975, Charterer unilaterally terminated the charter party on the ground of commercial frustration; at the time of termination, the charter party still had approximately a year to run. After Owner refused its demands for restitution of hire payments already made, Charterer instituted arbitration proceedings pursuant to the terms of the charter party. Charterer filed six claims in arbitration seeking damages of approximately $175,000; Owner responded with six counterclaims for over $1,695,000.

Following ten hearings over a two-year period, the three-member arbitration panel delivered a "Decision Interim Award," dated July 6, 1979 (interim award), with one member dissenting in part. The interim award held Charterer liable on four of Owner's six counterclaims; one of Owner's two remaining counterclaims was decided in Charterer's favor, while decision on the other counterclaim was deferred until a final damage award was made. The interim award did not decide any of Charterer's claims, and did not determine Owner's damages on any of the counterclaims on which Charterer had been held liable because, according to the arbitrators, "the parties agreed to separate liability and damages so far as counterclaims of Owner are concerned." All issues relating to Owner's damages or to Charterer's claims were reserved pending further evidentiary hearings and submissions. We are told that since the date of the interim award, there have been further arbitration hearings with regard to those issues.

After the interim award was announced, Charterer petitioned in the district court for an order vacating the award, staying the arbitration proceedings meanwhile, and requiring the arbitration to commence de novo before a new panel of arbitrators. Charterer claimed first that the interim award should be vacated because it was not "mutual, final, and definite" within the meaning of 9 U.S.C. § 10(d). The court, however, held that § 10(d) was inapplicable to an award that neither party sought to confirm and that did not purport to be final. The court also rejected Charterer's contention that the arbitrators' failure to decide Charterer's claims simultaneously with the counterclaims of Owner was "misbehavior" within the meaning of 9 U.S.C. § 10(c). Despite Charterer's claim that the parties had stipulated that all liability issues were to be decided simultaneously and before hearings on damages, the court found that the arbitrators had retained their broad discretion to decide the questions before them in whatever order they deemed suitable; the court held, moreover, that postponement of consideration of Charterer's claims to the damages phase of the proceedings was reasonable under the circumstances of this case, since Charterer's claims depended essentially on the disposition of Owner's claims. Finally, after reviewing the record the court considered and rejected Charterer's challenges to the merits of the arbitrators' decision on two of Owner's claims.

Section 10(d) provides, in relevant part:

In either of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration —

Section 10(c) provides, in relevant part:

In either of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration —

II.

As the district court noted, the award under review here "does not purport to be final but is merely a first step in deciding all claims submitted to arbitration." In order to be "final," an arbitration award must be intended by the arbitrators to be their complete determination of all claims submitted to them. See Mobil Oil Indonesia Inc. v. Asamera Oil (Indonesia) Ltd., 43 N.Y.2d 276, 281, 401 N.Y.S.2d 186, 372 N.E.2d 21 (1977). Generally, in order for a claim to be completely determined, the arbitrators must have decided not only the issue of liability of a party on the claim, but also the issue of damages. See Puerto Rico Maritime Shipping Authority v. Star Lines Ltd., 454 F.Supp. 368, 373-74 (S.D.N.Y. 1978). Since the interim award here did not decide any of Charterer's claims, it obviously was not a final determination of all issues submitted. Moreover, with the exception of the one Owner counterclaim decided in Charterer's favor, which Charterer obviously does not attack, the award did not finally dispose of any of the claims submitted, since it left open the question of damages on the four counterclaims of Owner that it sustained and reserved decision on the fifth.

The instant case arises under the Federal Arbitration Act and is therefore governed by federal law. Nevertheless, in view of the relative paucity of precedents on the particular issue and the similarity of language with regard to judicial review between the federal Act and the corresponding provisions in the New York statute, compare 9 U.S.C. §§ 9-11 with N.Y. Civ. Prac. §§ 7510-7511, we have looked to New York State decisions, as well. See The Hartbridge, 57 F.2d 672, 673 (2d Cir. 1932) (per curiam), cert. denied, Munson Steamship Line v. North of England Steamship Co., 288 U.S. 601, 53 S.Ct. 320, 77 L.Ed. 977 (1933); Island Territory of Curacao v. Solitron Devices, 356 F.Supp. 1, 11-12 (S.D.N.Y.), aff'd, 489 F.2d 1313 (2d Cir. 1973); Puerto Rico Maritime Shipping Authority v. Star Lines Ltd., 454 F.Supp. 368, 372 n. 6 (S.D.N.Y. 1978).

The district court correctly recognized that the interlocutory nature of the interim award rendered premature Charterer's challenge to it under 9 U.S.C. § 10(d). Section 10(d) provides that a district court may vacate an award where the arbitrators so "imperfectly executed" their powers that "a mutual, final, and definite award upon the subject matter submitted was not made." That section has no application to an interim award that the arbitrators did not intend to be their final determination on the issues submitted to them. It is only when arbitrators "imperfectly execute" their powers and make an award that purports to be final, but is in fact not, that vacatur is appropriate under § 10(d). But while the district court properly held that it could not entertain a § 10(d) attack on the interim award, it evidently assumed that it had jurisdiction to hear and decide Charterer's remaining challenges to the award. We believe, however, that the court erred in reaching the merits of these claims and in following any course other than dismissal of the petition.

Under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., a district court does not have the power to review an interlocutory ruling by an arbitration panel. See Travelers Insurance Co. v. Davis, 490 F.2d 536, 541-42 n. 12 (3d Cir. 1974); Compania Panemena Maritima v. J. E. Hurley Lumber Co., 244 F.2d 286, 288-89 (2d Cir. 1957); Luff v. Ryan, 128 F.Supp. 105, 108-09 (D.D.C. 1955); cf. Mobil Oil Indonesia, supra, 43 N.Y.2d at 281, 401 N.Y.S.2d 186, 372 N.E.2d 21 (interpreting New York's arbitration statute). The language of the Act is unambiguous: it is only after an award has been made by the arbitrators that a party can seek to attack any of the arbitrators' determinations in court, by moving either to vacate the award, see 9 U.S.C. § 10, or to modify or correct it, see id. at § 11. Thus, as was pointed out in Luff, supra, 128 F.Supp. at 109, a district court is without authority to review the validity of arbitrators' rulings prior to the making of an award. Where, as here, arbitrators make an interim ruling that does not purport to resolve finally the issues submitted to them, judicial review is unavailable.

Similarly, it is well established that a district court cannot entertain an attack upon the qualifications or partiality of arbitrators until after the conclusion of the arbitration and the rendition of an award. See Marc Rich Co. v. Transmarine Seaways Corp. of Monrovia, 443 F.Supp. 386, 387-88 (S.D.N.Y. 1978) (Knapp, J.); Catz American Co. v. Pearl Grange Fruit Exchange, Inc., 292 F.Supp. 549, 551 (S.D.N.Y. 1968) (Mansfield, J.); Petition of Dover Steamship Co., 143 F.Supp. 738, 740-41 (S.D.N.Y. 1956) (Herlands, J.); Albatross S.S. Co. v. Manning Bros., 95 F.Supp. 459, 462 (S.D.N.Y. 1951) (Weinfeld, J.).

Policy considerations, no less than the language of the Act and precedent construing it, indicate that district courts should not be called upon to review preliminary rulings of arbitrators. Most of the advantages inherent in arbitration are dissipated by interlocutory appeals to a district court. As we stated in Compania Panemena Maritima, supra, 244 F.2d at 288-89, a district court should not "hold itself open as an appellate tribunal" during an ongoing arbitration proceeding, since applications for interlocutory relief "result only in a waste of time, the interruption of the arbitration proceeding, and . . . delaying tactics in a proceeding that is supposed to produce a speedy decision." Similarly, the New York Court of Appeals has recently pointed out that arbitration is supposed to conserve the time and resources of both the courts and the parties; thus,

for the court to entertain review of intermediary arbitration decisions involving procedure or any other interlocutory matter, would disjoint and unduly delay the proceedings, thereby thwarting the very purpose of conservation.

Mobil Oil Indonesia, supra, 43 N.Y.2d at 282, 401 N.Y.S.2d at 188, 372 N.E.2d at 23. This case is a good example of how not to realize the alleged advantages of arbitration; 10 hearings over two years, with more to follow, is not a display of speed, economy or simplicity. We believe there is force to Owner's charge that Charterer has turned the arbitration process into a "war of attrition." In any event, we do not think there should now be engrafted onto this creeping and as yet incomplete arbitration the added procedure of judicial review.

Charterer cites to us Sportswear, Ski-Suits Waterproof Garment Workers' Union, Local 246 v. Evans Mfg. Co., 318 F.2d 528 (3d Cir. 1963); In the Matter of Cephalonian Shipping Co., S/A, No. 79-0334, 1979 A.M.C. 1451 (S.D. N.Y. 1979) and Puerto Rico Maritime, supra. If anything, Evans and Puerto Rico Maritime support the result here, but to the extent that the language of any of these cases approves of interlocutory review of arbitration awards, we respectfully disagree.
We also note Aerojet-General Corp. v. American Arbitration Ass'n, 478 F.2d 248, 251 (9th Cir. 1973), which indicated in dicta that interlocutory review of a ruling fixing the place of an arbitration hearing might be justified in certain "extreme cases" where the choice of venue was not made in good faith and irreparable injury would result. Since this issue is not presented here, we need not consider whether the inhibition against judicial review of interim orders in arbitration extends to such an "extreme" situation.

Thus, we conclude that the district court should have dismissed Charterer's petition for vacatur on the ground that it lacked power to review this interlocutory award; accordingly, we vacate the judgment of the lower court and remand for dismissal in accordance with this opinion. We realize that our disposition of this case may eventually allow Charterer to attempt to relitigate in court, at such time as a final award is rendered, issues previously determined by the district court. But while our holding today may result in a certain degree of duplication of effort in this particular instance, it will, we hope, decrease such waste in the future.

Since the trip to this court was caused by appellant's premature petition to vacate in the district court, we award costs to appellee.

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MICHAELS v. MARIFORUM SHIPPING, S.A
(Jun 27, 1980)