arbitrability. Any doubts concerning the scope of arbitrable issues are resolved in favor of
arbitration. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985)
(Mitisubishi). While the Federal Arbitration Act (“FAA”) directs courts to place arbitration
agreements on equal footing with other contracts, it “does not require parties to arbitrate when they
have not agreed to do so”. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford
Junior Univ., 489 U.S. 468, 478 (1989). “While ambiguities in the language of the agreement should
be resolved in favor of arbitration, [the court does] not override the clear intent of the parties, or
reach a result inconsistent with the plain text of the contract, simply because the policy favoring

29

arbitration is implicated. ‘Arbitration under the [FAA] is a matter of consent, not coercion”. Equal
Employment Opportunity Comm’n v. Waffle House, Inc., 534 U.S. 279, ___ (2002) (citations
omitted). “[Ql]uestions of arbitrability must be addressed with a healthy regard for the federal policy
favoring arbitration....” Mitisubishi, 473 U.S. at 626.

In Illinois, contract terms are given their ordinary meaning. See Interim Health Care of
Northern Il, Inc. v. Interim Health Care, Inc., 225 F.3d 876, 879 (7th Cir. 2000) (Health Care);
Diehl v. Twin Disc, Inc., 102 F.3d 301, 305 (7th Cir. 1996). A contract is ambiguous if its language
is reasonably and fairly susceptible to more than one meaning. Health Care, 225 F.3d at 879.
Meaning is given to each provision of the contract, and the fact that the parties dispute the meaning
of a contract provision does not render the contract ambiguous. Health Care, 225 F.3d at 879.

Fedunav relies solely on the following language as requiring arbitration: “Arbitration, ifany,
to be settled in Paris by Chambre Arbitrale. General Average, if any, to be settled in Paris.” This

language is not ambiguous as its meaning is not reasonably and fairly susceptible to more than one

meaning.


(1) All terms and conditions, liberties, and exceptions of the Charter
Party, dated as overleaf, are herewith incorporated. The Carrier shall
in no case be responsible for loss of or damage to cargo arisen prior
to loading and after discharging.

(2) The Hague Rules contained int (sic) the international Convention
for the Unification of certain rules relating to Bills of Lading, dated
Brussels the 25th of August 1924 as enacted in the country of
shipment, the corresponding legislation of the country of destination
shall apply, but in respect of shipments to which no such enactments
are compulsorily applicable, the terms of the said Convention shall

apply.”
(Id., at J 13).

Prior to October 24, 2000, the steel coils that are the subject of the instant lawsuit were
loaded on board the M/V Millenium Falcon in Fos Sur Mer, France. (Def.’s 56.1(a)(3) Statement
4] 14). On or about October 24, 2000, the M/V Millenium Falcon commenced its voyage. (Id., at
4] 15). The steel coils were carried to Federal Marine in Burns Harbor, Indiana, arriving on or about
November 18, 2000. (Id., at] 16). The steel coils were discharged from the M/V Millenium Falcon
on or about November 20, 2000, and delivered to Eurosteel at that time pursuant to the Bill of
Lading. (Id., at 17).

On November 15, 2001, Eurosteel filed the instant lawsuit alleging, in part, that Fednav
breached it duties contemplated under the Bill of Lading. (Def.’s 56.a(a)(3) Statement ff] 18-19).

Fednav argues that summary judgment is proper because Eurosteel was required to arbitrate
the instant subject of this suit pursuant to the arbitration clause within the Charter Party and Bill of
Lading.

Whether parties have agreed to submit their claims to arbitration is a matter of contract
interpretation that is determined by the courts. See AT&T Tech. v. Communications Workers of Am.,

475 U.S. 643, 648-49 (1986). This determination is made by applying federal substantive law of


Contrary to Fednav’s argument, the arbitration clause does mandate arbitration of disputes.
The arbitration clause states that “[a]rbitration, if any” will take place in Paris. The prepositional
phrase “if any” indicates that arbitration will take place in Paris if arbitration takes place.
Furthermore, the Charter Party and Bill of Lading contain no additional language mandating that
disputes be brought by arbitration. See Hoogovens Ijuiden Verkoopkantoor v. M.V. Sea Cattleya,
852 F.Supp. 6, 8 (S.D.N.Y. 1994) (finding clause: “General Average and arbitration to be settled in
the Netherlands” did not mandate arbitration; instead, if arbitration were to be conducted, whether
voluntarily agreed upon or required by some other contractual clause, arbitration would proceed in
the Netherlands). Compare, Vimar Seguros Y Reseguros v. M/V Sky Reefer, 515 U.S. 528 (1995)
(arbitration clause stated that disputes “shall be referred to arbitration”); Mitisubishi, 473 U.S. at 617
(“[a]!l disputes ... shall be finally settled by arbitration in Japan....”). In other words, the parties
could arbitrate a dispute; and, if they chose to do so, such arbitration would take place in Paris. The
mandate is that if arbitration does take place, it must be conducted in Paris by Chambre Arbitrale.

The instant case is readily distinguished from cases cited by Defendants that have required
arbitration to proceed based on contract language that such mandated arbitration. See e.g., Duferco
Steel Inc., v. M/V Kalista, 121 F.3d 321 (7th Cir. 1997) (“all disputes arising out of the performance
or interpretation of this contract shall be referred to arbitration...”); Steel Warehouse Co. v. Abalone
Shipping Ltd., 141 F.3d 234, 238 (Sth Cir. 1998) (“all disputes from time to time arising out of this
contract shall ... be referred to final arbitration...”

Furthermore, assuming argumendo, that the Court found that the terms of the contract were
ambiguous and required the Court to review the intent of the parties, as argued by Fednav, the

motion must still be denied. Fednav produced the declaration of J.P. Stoclin, the Chartering


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Nameatnwint ings | John W. Darah ‘| stn Jue fone

CASE NUMBER 01 C 8817 DATE 8/22/2002
CASE EUROSTEEL CORPORATION vs. M/V MILLENIUM FALSON
TITLE

of the motion being presented.]

[In the following box (a) indicate the party filing the motion, c.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly thenature

MOTION:
DOCKET ENTRY:

qd) o Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) (a) Answer brief to motion due___. Reply to answer briefdue___.

(4) Qo Ruling/Hearingon___—s set for at

(5) ga Status hearing[held/continued to] [set for/re-set for] on setfor_ at

(6) im Pretrial conference[held/continued to] [set for/re-set for]on__setfor__——at__—
(7) im Trial[set for/re-set for] on__ at

(8) oO [Bench/Jury trial] [Hearing] held/continued to____at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) 0 FRCP41(a)(2).

summary or in the alternative to stay is denied.

dl) ff {For further detail see order attached to the original minute order.]

(10) Ml [Otherdocketentry] Status hearing held and continued to 9/12/02 at 9:00 a.m. Enter Memorandum
Opinion And Order. Eurosteel was not required to arbitrate the present dispute, and Fednav’s motion for

No notices required, advised in open court.

No notices required. umber of notices

Notices mailed by judge’s staff.

G26 2002

daltocketed

Y

Notified counsel by telephone.

Y | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
LG deputy's
initials

Date/timevedeivedin |

central Clerk's Office mailing deputy initials



Manager of Riss Transport, in which he avers that the clause in dispute was drafted by Riss
Transport after negotiation with Fednav. He declares that it has never been the intention of Riss
Transport that arbitration of any controversies be mandatory and that if the parties decided to
arbitrate disputes, the location of the arbitration would be in Paris.

Based on the above, Eurosteel was not required to arbitrate the present dispute, and Fednav’s

Motion for Summary or in the Alternative to Stay is denied.

Dated: dag wid 2, 2007—- NC Monet

W. DARRAH
fed States District Judge



\%

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION POCKETED
pug 26 2002

EUROSTEEL CORPORATION,

Plaintiff,
No. 01 C 8817
y.

M/V MILLENIUM FALSON, her engines, boilers,
ete.; FEDNAV INTERNATIONAL LTD.;
MILLENIUM V INC.; and FEDERAL

MARINE TERMINALS, INC.,

Judge John W. Darrah

Defendants.
MEMORANDUM OPINION AND ORDER

Plaintiff, Eurosteel Corporation (“Eurosteel”), filed suit against Defendants, M/V Millenium
Falcon, Fednav International Ltd., Millenium V Inc., and Federal Marine Terminals, Inc., alleging
Defendants damaged steel coils during overseas transport. On May 29, 2002, Eurosteel dismissed
its claim against Federal Marine Terminal Inc. Presently before the Court is Fednav International
Ltd.’s (“Fednav”) Motion for Summary Judgment dismissing the cause of action or staying the
proceedings for failure to arbitrate in accordance with the terms and conditions of the bills of lading.
Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
material fact.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
All the evidence and the reasonable inferences that may be drawn from the evidence are viewed in

the light most favorable to the nonmovant. Miller v. American Family Mutual Ins. Co., 203 F.3d

997, 1003 (7th Cir. 2000). Summary judgment may be granted when no “reasonable jury could


return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).

On October 3, 2000, Fednav entered into a charter party (“Charter Party”) with Riss
Transport, a foreign entity, in Fos Sur Mer, France. A “charter party” is an agreement by which the
owner of a ship lets the ship to another or a “Charterer”. Pursuant to the Charter Party, Riss
Transport chartered the M/V Millenium Falcon for the carriage of goods between Fos Sur Mer and,
among other ports of call, Burns Harbor, Indiana. (Def.’s 56.1(a)(3) Statement J 4). Riss Transport
was a member of the Unisor Group, now known as the Arcelor Group (“Arcelor”). Arcelor is an
official group of affiliated entities that manufacture products for, and provide services to,
commercial steel consumers. Riss Transport provides maritime services to Arcelor. (Id., at ] 6).
Eurosteel is also a member of the Unisor Group. (Id., at 7).

The Charter Party, which was drafted by Riss Transport, contains the following clause:

ARBITRATION

Arbitration, if any, to be settled in Paris by Chambre Arbitrale
Maritime. General Average, if any, to be settled in Paris.

(id., at {{] 9-10).

Eurosteel entered into a Bill of Lading, as consignee, for the shipment of steel coils between
Fos Sur Mer, France, and Burns Harbor, Indiana. (Def.’s 56.1(a)(3) Statement J 11). The Bill of
Lading, on its face, contains the following language: “ALL TERMS, CONDITIONS AND
EXCEPTIONS INCLUDING ARBITRATION CLAUSE OF C/P DATED FOS SUR MER 3®?
OCTOBER 2000 ARE HEREWITH INCORPORATED” (Id., at § 12). The reverse side of the Bill

of Lading includes the following language: