Any claims against the Seller in respect of this contact shall be brought before the relevant court or arbitral tribunal in accordance with Article 19/20 within 6 months of the date of the delivery of the Bunker Fuel, failing which such claims shall be deemed waived time barred.8 (Emphasis added)
1. The T&Cs of KPI were not identified beyond all reasonable doubt, citing Ward v. TheLadders.Com, Inc., 3 F. Supp.3d 151, (S.D.N.Y. 2014) and Valley Stream Foreign Cars, Inc. v. American Honda Motor Co., Inc., 209 F. Supp.3d 547 (S.D.N.Y 2016);
2. The above internet/link/address reply or alleged dead page response to counsel for Schuyler to the address given in the "Notes" in the Confirmation of Order;
3. The six month time bar is unreasonable under the circumstances present here;
4. Even if the six month period is reasonable, the time bar should not be enforced by the Panel on account of equitable grounds, or applying the doctrine of laches in this maritime dispute; and
5. In the exercise of discretion, the Panel should permit Schuyler to have discovery regarding the communications between KPI and Dorick regarding this dispute.
It is well established under New York law that '[t]he doctrine of incorporation by reference requires that the paper to be incorporated into the written instrument by reference must be so described in the instrument that the paper may be identified 'beyond all reasonable doubt' [citing authorities]...Courts have emphasized that incorporation by reference must meet an 'exacting standard’; vague references to documents not specifically identified do not suffice. [citing authorities].
Both the governing Charter Party and the Seller's Standard Terms and Conditions of Sale of Marine Fuel by KPI Bridge Oil. Inc.. call for any and all disputes to be resolved by arbitration in New York pursuant to the Maritime Arbitration Rules of the New York Society of Maritime Arbitrators (the "SMA Rules"). Pursuant to the SMA Rules. Charterers hereby nominate Mr. Alan E Coletti... and demand that these disputes be consolidated... The appointment of Charterer's Arbitrator is made pursuant [to] the terms and conditions of the Charter Party. Article 20 of seller's Standard Terms and Conditions and Section 2  of the SMA Rules. In accordance with Section 2 of the SMA Rules. Charterers hereby request a consolidated arbitration before a consolidated panel of arbitrators. (Emphasis added.) (Schuyler Ex. P.)
a. "The chief consideration when determining the validity of contractual terms -in contracts with or without a nexus to the internet is whether the party to be bound had reasonable notice of the terms at issue and whether the party manifested assent to those terms." (Id. at 269);
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b. "We hold that the district court did not err in concluding that the RSO terms and conditions supplemented the oral agreement between the parties because notice of the terms and conditions was clearly and conspicuously displayed in every RSO that Crowley sent to Tubal-Cain. the terms and conditions were at all times reasonably accessible and available to Tubal-Cain, and Tubal-Cain manifested assent by accepting the RSOs without objection to the terms and conditions. Under ordinary contract principles. Tubal-Cain is therefore bound by those terms and conditions, even if neither Van-Huns [whose job it was to review the terms and conditions] nor anyone else at Tubal-Cain ever visited Crowley's website in order to familiarize himself with those terms and conditions" (Id. at 270);
c. The general maritime law of the United States recognized and included the above principles enunciated by Ward and Valley Stream (Id. at 267 269);
d. The issue of incorporating terms was controlled by the general maritime law or admiralty’ law (Id. at 269); and
e. Notice to Tubal-Cam of the terms and conditions of Crowley was reasonable under the circumstances (Id. at 269).
Similarly, the Panel finds that Schuyler had reasonable notice of the T&Cs of KPI, including the six month time limit.
In the new bunkered MGO we have found large content of water and dirt. Kindly accept the master notice regarding... this. (Schuyler Ex. A).
And by January 29, 2018 (long before six months from the fuel delivery’ had run) Schuyler knew that the Owner of the Vessel was going to proceed formally against Schuyler (by arbitration or court action if necessary) with a claim of $86,686.75. (Schuyler Ex. I)
Any claims against the Seller [KPI] in respect of this contract shall be brought before the relevant...tribunal within 6 months of the date of delivery... (Emphasis added.)
Moreover, as a matter of fact and equity, Schuyler knew the vessel owner was making claim against it on day one; and neither circumstance (1) or (2) was a bar to Schuyler starting a protective arbitration (to stay, or to proceed with) against KPI anytime between November 11, 2017 and May 10, 2018; and, in addition, Schuyler’s position totally disregards the everyday/forever/reality/practice in the marine business/claim world of obtaining extensions of time to commence arbitration (or suit) which, if not agreed, is countered with a protective suit or arbitration. Testing certainly could have continued during any arbitration proceeding had Schuyler made a timely arbitration demand.
We write to see whether Schuyler Line Navigation Co. is agreeable to litigate this matter in the United States District Court instead of incurring the expense associated with arbitration.
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Please let us know whether litigation is of interest to your company.13
(d) Time Bar
In each and every case any and all claims, including those under Subclauses 9(a)(i), 9(b)(i) and 9(c), by the Buyers shall be time barred unless arbitration proceedings have been commenced in accordance with Clause 25 hereof within twelve (12) months of the date of delivery of the Marine Fuels or the day that delivery should have commenced as per the Confirmation Note.
The BIMCO Bunker Terms 2018 (Clause 9) also have a time bar (of 12 months) to commence arbitration. Seehttps://www.datocms-assets.com/4161 /1538135553-bimco-2018-hunker-one- tcrms.pdf.
... KPI scheduled an inspection to allow the parties to properly understand their rights, invited SLNC [Schuyler] to attend that inspection, represented to SLNC that their reservation of rights was duly noted, and then ceased all communications. The evidence likewise shows that Dorick demanded that that SLNC waive its right to arbitration [with Dorick under the Charter], aggressively attempted to obtain a settlement payment from SLNC, and then likewise ceased communications until shortly after the purported six month time bar [with KPI] expired. (Emphasis by SLNC.) (Schuyler’s Opposition to the Motion, at 13.)
In the view of the majority' of the Panel. SLNC has not made a case (factual, legal, equitable or under laches) for the Panel to allow the requested discovery, or delay its decision on the time bar issue any further, or until the entire consolidated arbitration proceeding is concluded.
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