6 Alexandra Court

[Ashlie Mealey]

AlexandraCourt is situated on the seafront in Southsea in Hampshire. The court offers residents a welcoming atmosphere with everything they need on their doorstep. The seafront lends the town a bustling atmosphere, especially during the summer months.

Nearby Southsea Common holds a range of events from motor festivals to the Southsea Show, with the bandstand hosting live music during summer weekends. A short distance away, residents can enjoy the Kings Theatre or the good selection of cafs and bars. Gun Wharf Quays offers a large selection of designer shops, bars, restaurants and a cinema and bowling complex.

There are regular hovercraft, catamaran and car ferries to the Isle of Wight. For those fancying a trip even further afield, Portsmouth ferry port offers services to France and Spain for car and foot passengers.

Alexandra Court is conveniently located close to amenities including shops, convenience stores, a launderette, caf and takeaway. The court enjoys excellent transport links with regular buses and trains.

Modern living in Alexandra Court - one of the newer development by Polygon, is well located in West Cambie near Walmart, banks, shops and restaurants. Choices of one to three-bedrooms condos. Each condo features air-conditioning and geothermal heating, high ceilings and spacious floor plans. Practical layouts with lots of living and closet space. Gourmet kitchen with stainless steel appliances. Great amenities include club house, fitness centre, outdoor pool, courtyard and guest suites. Walk to shopping malls, restaurants, Lansdowne Skytrain Station and public transits. Easy access to Vancouver and US border by Highway 99. Complex includes buildings at 9311 & 9399 Alexandra Road and 9366 & 9388 Tomicki Ave.

The libelant (Greenwich Marine) named as respondents the vessel S.S. Alexandra, Fidelity Shipping Company, *673 Ltd. ("Fidelity"), and Ministry of Supply of the United Arab Republic ("Ministry"). It was averred that Greenwich Marine had chartered from Fidelity (as owner) under date of December 14, 1962 the Alexandra for a voyage from Albany, New York, to ports in the United Arab Republic; that under the same date Greenwich Marine had chartered the Alexandra to the Ministry for the same voyage; that the vessel made the voyage; that the Ministry owes Greenwich Marine $92,766.69 as due and unpaid freight; that the charterparty with the Ministry contained an arbitration clause and that Greenwich Marine had demanded arbitration of the freight claim dispute and had appointed an arbitrator but the Ministry had made no response and had appointed no arbitrator; that the Ministry had made a claim against Greenwich Marine for $267,787.35 for alleged cargo damage; that if there be any liability on Greenwich Marine to the Ministry for cargo damage (and it denies that there is any such liability) then Fidelity as owner would be liable over to Greenwich Marine for any liability of Greenwich Marine to the Ministry; that Greenwich Marine has notified Fidelity of the claim made by the Ministry and has itself made claim against Fidelity and the vessel; that the charter-party with Fidelity contained an arbitration clause; that Greenwich Marine has demanded arbitration of "the dispute" with Fidelity and the vessel concerning the liability of Fidelity to Greenwich Marine for any liability Greenwich Marine "may suffer or incur" (emphasis supplied) on the claim made against it by the Ministry; that Fidelity has failed to respond to the demand for arbitration; that Greenwich Marine "has sustained damages" of $92,766.69 because of non-payment of freight by the Ministry; and that Greenwich Marine "has sustained or may sustain damages in the sum of $267,787.35 or in such other sum as may be determined as the amount of any loss or damage to said cargo for which Libellant is or may become liable to the Ministry * * *" etc. (emphasis supplied).

Demand is made for an order under Section 4 of the Act (9 U.S.C. 4) directing arbitration and under Section 5 of the Act (9 U.S.C. 5) appointing arbitrators for respondents. Demand is also made under Section 8 of the Act (9 U.S.C. 8) that the vessel be seized and that property of the Ministry be seized.

It is to be noted that as to the cargo damage claim for $267,787.35 made against libelant by the Ministry, neither the time of such claim nor the manner of its making is alleged. It does not appear that any suit has been commenced against libelant by the Ministry. In fact, from other papers, it appears that the Ministry has brought suits on the cargo damage claim against the vessel Alexandra and Fidelity as her owner; one such suit has been brought in the United Arab Republic and another in the United States District Court for the Eastern District of New York; in each suit security of at least $270,000 has been posted for the vessel.

In the suit at bar, as soon as the libel was filed and on July 19, 1963 the vessel was seized and attached. Security was then posted and the vessel was released. Proctors entered a general appearance for Fidelity, which filed a claim as owner to the vessel Alexandra; other proctors entered a general appearance for the Ministry and the Ministry appointed its arbitrator for the claim of Greenwich Marine for freight. Exceptions were filed by Fidelity on the grounds that the libel failed to state a cause of action against the vessel and Fidelity and also that the libel failed to show a maritime lien against the vessel to justify an in rem suit against her.

Libelant has apparently proceeded on the mistaken theory that a libel under Section 8 is simply an alternative to Section 4 for securing an order directing arbitration, having the advantage of enabling the party seeking to compel arbitration to obtain security against a possible eventual award. Libelant argues that its procedure "is identical with that used in the Dreyfus case [Marine Transit Co. v. Dreyfus], 284 U.S. 263 [52 S. Ct. 166, 76 L.Ed. 282]" but, as will be seen, this is not true.

A libel under Section 8 must state a cause of action just as any other properly pleaded libel. The cause of action to be stated in a libel under Section 8 is not simply for an order directing arbitration; it is the independent cause of action which a party believes it has and in respect of which a contract between the parties provides for arbitration. The purpose of Section 8 is to permit a party having an admiralty cause of action to commence a suit in admiralty, despite an agreement to arbitrate, so that "the vessel or other property" may be seized and held as security until the arbitration is concluded. A libel stating a good cause of action having been filed and the vessel or other property having been seized, "the court shall then have jurisdiction to direct the parties to proceed with the arbitration * * *", etc. 9 U.S.C. 8. Section 8 of the Act "plainly contemplates that one who has agreed to arbitrate may, nevertheless, prosecute his cause of action in admiralty, and protects his opponent's right to arbitration by court order". The Anaconda v. American Sugar Refining Co., 322 U.S. 42, 45, 64 S. Ct. 863, 865, 88 L. Ed. 1117 (1944; emphasis supplied). The libel contemplated by Section 8 is one stating the substantive cause of action claimed to exist; reference in such a libel to the agreement to arbitrate is neither necessary nor appropriate. If, after the libel has been filed, no party asks for an order directing arbitration, then the cause of action set forth in the libel is tried out just as in any other admiralty suit. If a party does wish to invoke the agreement to arbitrate, then a motion may be made under Section 8 in the pending admiralty suit and a petition under Section 4 is neither necessary nor appropriate for such purpose. For example, in Marine Transit Co. v. Dreyfus, 284 U.S. 263, 52 S. Ct. 166, 76 L. Ed. 282 (1932) Marine Transit made a contract to supply bottoms to carry wheat for Dreyfus on the New York Barge Canal; the contract provided for arbitration. Marine Transit loaded the barge Edward A. Ryan with a cargo of wheat belonging to Dreyfus; while in tow on the voyage, the barge sank in the Canal with its cargo. Dreyfus then filed a libel in rem against the tug of Marine Transit and in personam against Marine Transit "to recover damages for the loss of the wheat" (284 U.S. at 268, 52 S. Ct. at 167, 76 L. Ed. 282). Marine Transit answered the libel. Dreyfus then "moved for a reference of the dispute to arbitration in accordance with the provision of the booking contract" (284 U.S. at 269, 52 S. Ct. at 167, 76 L.Ed. 282). The Supreme Court upheld the granting of this motion under Section 8, the confirmation of the award, and the constitutionality of the Arbitration Act. It is especially to be noted that the cause of action set out in the libel by Dreyfus was the ordinary, substantive cause of action by a shipper for loss of cargo.

The libel in suit as filed by Greenwich Marine does not state any cause of action against the vessel or against Fidelity. No sum of money is said to be due or owing by Fidelity or the vessel and for aught that appears no sum of money will ever be due or owing by them. The claim is entirely speculative and hypothetical. No liability for cargo damage has been imposed on libelant and while it is said that a claim has been made, in fact no action has been commenced against Libelant.

Under Admiralty Rule 56, if there is a pending suit, a third party *675 may be brought into such pending suit if such third party "may be" liable to the respondent "by way of remedy over". Cf. Fed.R.Civ.P. 14(a). But here, of course, there is no pending suit against Greenwich Marine and Admiralty Rule 56 is not applicable.

In some cases, where a party has been sued in a state court and claims a remedy over against a third party for any liability adjudged in the state court action, its libel against the third party in this Court has been sustained before any judgment has been rendered in the state court action. As against the claim of prematurity and thus no cause of action, this Court has treated the libel as "a substitute for the practice under the 56th Admiralty Rule", which Rule, of course, could not be effective in the state court. Moran Towing & Transportation Co. v. United States, 56 F. Supp. 104, 106 (S.D. N.Y.1944). The reasoning of the Moran case has been rejected. Mitsui Steamship Co. Ltd. v. Jarka Corp., 218 F. Supp. 424 (E.D.Pa.1963); see also West Africa Navigation, Ltd. v. Nacirema Operating Co., 191 F. Supp. 131 (E.D.Pa.1961).

3a8082e126