# Petition for Writ of Certiorari — Triumph Tankers Ltd. v. Kerr-McGee Refining Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2251%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 502 U.S. 821 ## Text ‘ (VY) 60-1934 No. IN THE Supreme Court of the United States OCTOBER TERM, 1990 >_> TRIUMPH TANKERS LTD., Petitioner, —_vV— KERR-MCGEE REFINING CORPORATION, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT JOSEPH C. SMITH BURLINGHAM UNDERWOOD & LORD One Battery Park Plaza New York, New York 10004 (212) 422-7585 Counsel of Record for Petitioner Of Counsel R. SCOTT ERVIN BURLINGHAM UNDERWOOD & LORD Dated: June 17, 1991 QUESTIONS PRESENTED 1. Where a vessel owner agreed to arbitrate only those dis- putes ‘‘arising out of’? a voyage charter party covering the carriage of a single cargo of crude oil to the United States, whether the arbitrators exceeded their powers by awarding damages for a claim based on events and disputes arising out of voyages not covered by the charter? If the arbitrators did not exceed their authority, 2. Whether the Second Circuit erred in holding that the arbitrators could award treble damages under the Racketeer- ing Influenced and Corrupt Organizations Act based on a ‘*pattern’’ consisting of just one ‘‘racketeering act’’? TABLE OF CONTENTS PTT ere re pol Ee SS ee ee) ee ee SS so 0 4 000.00060080n464 NER bCRRS EES | POVPCTTTTTE TUTTI TT ee ES ng occ cuneb va davneenedacees i ec eucene ees badnene cana Or ee ee. i cc ckone e000 40000s0o sseeks Reasons for Gonmtinn the WI «occ cesccccsececcnes I. II. Ill. IF ALLOWED TO STAND, THE SECOND CIRCUIT DECISION WILL UNDERMINE ESTABLISHED PRINCIPLES OF LAW GOVERNING THE ARBITRATION ACT AND THis BAD AE ess cccsessseccseces THE SECOND CIRCUIT HELD THAT THE ARBITRATORS HAD AUTHORITY TO RESOLVE CLAIMS BEYOND THE SCOPE OF AUTHORITY GRANTED BY THE PAR- TIBS’ AGREEMENT 2. cscccccccccecscccees THE SECOND CIRCUIT HELD THAT IN ARBITRATION, A RICO ‘‘PATTERN’’ CAN BE BASED ON JUST ONE ‘‘RACKE- yy. i. oe | 6y ee rrrerererrrrrrr rr Tre ry. Ce vic ake ueeedeecetanes sae PAGE iil TABLE OF AUTHORITIES Cases AT&T Technologies v. Communications Workers, 475 Cee eee reeked sev ened tésenes Amalgamated Food v. Great A & P Co., 415 F.2d 185 TT ee ca kceeeieewewetees Dewey v. Reynolds Metal Co., 291 F. Supp. 786 (W.D. EE Oe H.J. Inc. v. Northwestern Bell Telephone Company, 57 ccc wa aaccssevsescesscesess Kerr-McGee Refining Corporation v. M/T TRIUMPH, I EO, PED, oo cece accnccscscces McAllister Bros. v. A & S Transport Co., 621 F.2d 519 a rr Puma Industrial Consulting, Inc. v. Daal Associates, ee Shearson/American Express v. McMahon, 482 U.S. ee Trade & Transport, Inc. v. Valero Refining Co. (M/T LAUBERHORN), S.M.A. No. 2699 (1990)........ United Steelworkers v. Warrior & Gulf Navigation EE COMED cece ccaccccsccescscscces U.S. v. Indelicato, 865 F.2d 1370 (2d Cir. 1989)..... PAGE 1] 1] iv PAGE Other Authorities Federal Arbitration Act, 9 U.S.C. §§ 1-14 (1991)..... 6 D RRB, BOE bc tide vececnsewsccencesessctesecss 6 BD Ries ac acces cvcconsscianseness6sssusesss 9, 11 Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (West ed. 1990)...... 6 18 U.S.C. § 1961 IN THE Supreme Court of the United States No. . OCTOBER TERM, 1990 - TRIUMPH TANKERS LTD. . Petitioner, =) , KERR-MCGEE REFINING CORPORATION, Respondent. >_> PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Petitioner, Triumph Tankers, Ltd.' (‘‘Triumph’’) respect- fully prays that a writ of certiorari issue to review the deci- sion of the United States Court of Appeals for the Second Circuit dated January 28, 1991. OPINIONS BELOW The opinion of the Court of Appeals for the Second Cir- cuit is reported at 924 F.2d 467 and is reprinted in the Appendix (‘‘App.’’) at pages la-lla. The memorandum decision of the United States District Court for the Southern District of New York (Conner, D.J.) 1 Pursuant to Supreme Court Rule 29.1, Triumph Tankers Ltd. states that it has no corporate parent or subsidiary. 2 has not been reported. It is reprinted in the Appendi~. at pages 12a-18a. JURISDICTIONAL STATEMENT This action was commenced by Respondent Kerr-McGee Refining Corporation (‘‘Kerr-McGee’’) in 1984 as an attach- ment proceeding under Admiralty Rule B in the United States District Court for the Southern District of New York. Fed- eral jurisdiction was invoked under 28 U.S.C. §1332 and § 1333. The action was stayed pending arbitration, and upon completion of the arbitration in 1990, Kerr-McGee moved pursuant to the Federal Arbitration Act to confirm the two awards issued by the arbitrators. Triumph cross-moved to vacate the awards. By memorandum decision dated July 24, 1990 the District Court confirmed the Partial Final Award and directed that judgment be entered thereon, and vacated the Final Decision and Award. Thereafter, Kerr-McGee appealed from that portion of the District Court’s decision which vacated the arbitrators’ Final Award and Triumph cross-appealed from that portion of the court’s decision which confirmed the arbitrators’ Partial Final Award. Both the appeal and the cross-appeal were pur- suant to 28 U.S.C. § 1291. By decision dated January 28, 1991 the United States Court of Appeals for the Second Cir- cuit affirmed the District Court’s confirmation of the Partial Final Award but reversed the vacatur of the Final Award (‘‘Second Circuit Decision’’). On February 11, 1991 Triumph filed a Petition for a Rehearing of the Second Circuit Decision, with a Suggestion for Rehearing in Banc. The Petition was denied on March 19, 1991, (App., 19a), and on April 12, 1991, the District Court entered judgment on the Final Award. This Court has jurisdiction to review the Second Circuit Decision pursuant to 28 U.S.C. § 1254(1). 3 STATUTES INVOLVED Section 10 of the Federal Arbitration Act provides: In either of the following cases the United States court in and for the district where the award was made may make an order vacating the award upon application of any party to the arbitration— * * * (4) Where the arbitrators exceeded their powers, . . . 9 U.S.C. § 10(4) (1991). Section 1961 of the Federal Racketeering Influenced and Corrupt Organizations Act provides: As used in this chapter— (1) ‘‘racketeering activity’? means ... (B) any act which is indictable under any of the following provisions of Title 18, United States Code: . . . section 659 (relat- ing to theft from interstate shipment). . . * * . (5) ‘‘pattern of racketeering activity’? requires at least two acts of racketeering activity .... 18 U.S.C. § 1961 (1), (5).? STATEMENT OF THE CASE This dispute arises out of a single voyage charter party (the ‘‘Charter’’) dated March 5, 1984 between Triumph, as owner of M/T TRIUMPH, and Kerr-McGee as charterer. The Charter was for the carriage of a cargo of crude oil from the United Kingdom to U.S. East Coast or Gulf ports, and pro- vided for arbitration of all disputes ‘‘arising out of’’ the Charter. 2 The full text of Section 1961 of the RICO Act is set out in cue Appendix at pages 47a-49a. 4 On March 9, 1984, TRIUMPH loaded 539,999 net barrels of Beatrice Crude oil at Nigg Oil Terminal in England. The vessel sailed on March 10, and arrived at the discharge port, Corpus Christi, on March 28, 1984. Upon arrival at Corpus Christi, the amount of cargo on board was calculated by a cargo surveyor appointed by Kerr-McGee to be 538,250.09 barrels. Following discharge, shore tank gaugings by the sur- veyor indicated that a total of 528,060.65 net barrels had been received from the vessel. On the basis of these measure- ments, Kerr-McGee alleged short delivery of the cargo and withheld freight due to Triumph in the amount of $213,000. In 1984, Triumph commenced arbitration to recover the 10% balance of freight withheld by Kerr-McGee. Kerr-McGee subsequently paid the freight due to Triumph, but counter- claimed in the arbitration for $150,638.59 as damages for short delivery of 4,835.91 barrels of cargo. Following several hearings, Kerr-McGee increased the amount of its claim for shortage to 11,938.35 barrels. In addition, Kerr-McGee alleged that Triumph was part of an ‘‘enterprise’’ engaged in a systematic pattern of cargo conversion onboard TRIUMPH and several other vessels not owned by Triumph, and added separate claims in the arbitration for punitive damages, for treble damages based on the Racketeer Influenced and Cor- rupt Organizations Act, 18 U.S.C. §§ 1961-1968 (‘‘RICO’’) and for attorneys’ fees and costs. On September 7, 1988, the Panel issued an interim award on the shortage claim (the ‘‘Partial Final Award’’) which determined the quantity of cargo short-delivered, awarded Kerr-McGee damages plus interest for that amount and apportioned the arbitrators’ fees between the parties. The Panel reserved consideration of the claims for punitive dam- ages, RICO damages, and the claim for attorneys’ fees and costs, and requested the parties to submit briefs on those remaining claims. On March 28, 1990, the Panel issued its Final Decision and Award (the ‘‘Final Award’’), in which a majority of the arbi- trators found that Triumph had converted cargo onboard 5 TRIUMPH and that the conversion was ‘‘part of a pattern sufficient to satisfy the requirements of civil liability under . . « RICO.”’ App., 29a. Accordingly, the majority awarded Kerr-McGee an additional $512,520.10, as treble damages under RICO, costs of the arbitration and legal fees. The arbi- trators’ finding of a ‘‘pattern’’ of activity was based on a sin- gle ‘‘racketeering act,’’ namely the conversion of cargo during the voyage by TRIUMPH. In finding a RICO ‘“‘pat- tern,’’ the arbitators also referred to Kerr-McGee’s unproven allegations of shortages on prior voyages of TRIUMPH and to events transpiring onboard TRISUN, TRILIGHT, TRIAD and TRISTAR, (App., 27a-28a), four vessels which the Panel acknowledged were owned by parties other than Triumph. App., 28a. Neither the prior voyages of TRIUMPH nor the other four vessels were covered by the Charter. The District Court confirmed the Partial Final Award but vacated the Final Award because the panel majority exceeded its power by resolving claims not within the scope of its authority. Specifically, the District Court held that: because the parties agreed to arbitrate only those claims ‘‘arising out of’’ the Charter, the panel majority exceeded its powers in looking to occurrences on other voyages in finding a pattern and enterprise to satisfy the elements of RICO and was accordingly without author- ity to award RICO damages on that basis. App., 18a. On appeal, the Second Circuit found that the arbitration panel had acted within the scope of the arbitration clause and that the District Court erred by not confirming the Final Award. Kerr-McGee Refining Corporation v. M/T TRIUMPH, 924 F.2d 467, 471 (2d Cir. 1991); App., 2a. Accordingly, the Second Circuit reversed and directed the District Court to confirm the Final Award. This petition fol- lowed. a 6 REASONS FOR GRANTING THE WRIT I. IF ALLOWED TO STAND, THE SECOND CIRCUIT DECISION WILL UNDERMINE ESTABLISHED PRIN- CIPLES OF LAW GOVERNING THE ARBITRATION ACT AND THE RICO ACT The Second Circuit Decision directly conflicts with the stat- utory provisions of the Arbitration Act, 9 U.S.C. §§ 1-14 and the RICO Act, 18 U.S.C. §§ 1961-1968, as well as case law interpreting such provisions. If upheld, the Decision will cast doubt on the continued validity of the established principles of law governing these statutes and lay a foundation for much unnecessary litigation in the future. Certiorari should be granted to preserve the hard-won uniformity of law relat- ing to these two widely used federal statutes. Moreover, the Second Circuit Decision violates accepted principles of Due Process and it must not be allowed to stand. Il. THE SECOND CIRCUIT HELD THAT THE ARBI- TRATORS HAD AUTHORITY TO RESOLVE CLAIMS BEYOND THE SCOPE OF AUTHORITY GRANTED BY THE PARTIES’ AGREEMENT It has long been settled that arbitration is a matter of con- tract and that arbitrators may only resolve claims which the parties have agreed to submit to them. AT&T Technologies v. Communications Workers, 475 U.S. 643, 648 (1985); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960); McAllister Bros. v. A & S Transport Co., 621 F.2d 519, 522 (2d Cir. 1980). The Arbitration Act codifies this principle, permitting the court to vacate an award where ‘‘the arbitrators exceeded their powers. . . .”’ 9 U.S.C. § 10(4). Ignoring this principle, the Second Circuit held that since RICO claims in general are arbitrable, we see no reason here for limiting arbitrability to those situations in which all of the necessary prior conduct eal 7 giving rise to RICO liability is governed by an agreement to arbitrate. TRIUMPH, 924 F.2d at 471; App., 9a. The Second Circuit holding allows the arbitrators, under the guise of a RICO claim, to resolve disputes beyond the scope of authority granted to the arbitrators by the parties’ agreement. In this case, the arbitrators found only one ‘‘racketeering act’’ to have arisen out of the voyage covered by the Charter party, namely, the conversion of cargo. The arbitrators then relied on allegations of shortages on prior voyages and events on other vessels not owned by Triumph to find evidence of a **pattern’’ of ra.xeteering activity. This required making legal and factual determinations regarding events and disputes aris- ing out of voyages unrelated to the subject Charter and with respect to other vessels not in Triumph’s control. The Second Circuit reasoned that the arbitrators ‘‘should be able to consider any conduct of the parties that bears on the damages appropriate for a covered dispute.’” TRIUMPH, 924 F.2d at 470; App., 8a. However, in looking beyond the voyage covered by the Charter to find the necessary acts to support a pattern under RICO, the arbitrators were not just considering damages—they were determining the substantive elements necessary to support a RICO cause of action. The arbitrators could not get to the question of RICO damages until they had found RICO liability, and here, the elements necessary to establish that liability did not ‘‘arise out of’’ the Charter. They arose ‘‘out of’’ voyages covered by other char- ters, involving vessels not owned or controlled by Triumph. District Judge Conner recognized that such adjudication in respect of prior voyages of TRIUMPH or other vessels was ultra vires on the arbitrators’ part, and acted properly in vacating the Final Award. That decision should be reinstated. The Second Circuit also reasoned that if Triumph’s argu- ment were carried to its logical extreme, ‘‘a RICO claim could not be arbitrated except in the rare instance in which all the predicate acts occurred on a single voyage.’’ 8 TRIUMPH, 924 F.2d at 470; App., 8a. Citing to this Court’s holding in Shearson/American Express v. McMahon, 482 U.S. 220 (1987), the Second Circuit stated that, [w]e do not believe that the [Supreme] Court, in approv- ing arbitration for RICO claims, thought it was creating a RICO arbitration forum only for situations in which all acts constituting the pattern (and the enterprise) arise under an agreement to arbitrate .... Since RICO claims are arbitrable, we see no reason here for limiting arbitrability to those situations in which all the necessary prior conduct giving rise to RICO liability is governed by an agreement to arbitrate. TRIUMPH, 924 F.2d at 471; App., 8a-9a. First, a distinction must be drawn between voyage charters (such as the one involved here), which cover only a single voyage, and time or bareboat charters which cover multiple voyages over an extended period. It is only in cases involving the former types of charters that all predicate acts must occur during a single voyage; a situation which may not be all that rare. E.g., Trade & Transport, Inc. v. Valero Refining Co. (M/T LAUBERHORN), 3.M.A. No. 2699 (1990). Second, Triumph has never contended that as a general matter, RICO claims are not arbitrable; McMahon settled that question. But the inquiry does not end there. An arbitral award on any claim, be it for breach of contract, for a pat- tern of conduct under RICO or for punitive damages, remains subject to review for fraud, bias, prejudicial miscon- duct or excess of authority under Section 10 of the Federal Arbitration Act. In McMahon, this Court did not address the application of the Arbitration Act in the context of a RICO case, and, since the RICO claim there was based on events expressly covered by the parties’ contract, the Court did not reach the issue presented in this case. Certainly, there is no indication in McMahon that this Court meant to narrow the statutory grounds for review of arbitral awards. 9 The basis for the Second Circuit’s belief that this Court does not require all acts supporting a RICO pattern to ‘‘arise out of’’ the agreement to arbitrate is uncertain, particularly since this Court has confirmed that arbitrators err when they exceed the scope of their authority. United Steelworkers of America v. Warrior & Gulf Navigation, Co., 363 U.S. 574, 582 (1960). If the Second Circuit Decision is upheld, the effect will be to virtually immunize arbitral awards involving RICO from judicial review under the ‘‘excess of powers’’ doctrine. Nothing in either the RICO Act or the Arbitration Act supports such a result. The Court should grant certiorari to review the Second Circuit’s conclusion that the long- standing principle that arbitrators are limited by the scope of the parties’ arbitration agreement does not apply in arbitra- tions involving the RICO statute. Ill. THE SECOND CIRCUIT HELD THAT IN ARBITRA- TION, A RICO “PATTERN”? CAN BE BASED ON JUST ONE ‘‘RACKETEERING ACT”’ In the event that the Court concludes that the arbitrators did not exceed their powers in resolving claims arising out of events not covered by the Charter, the Court should stil! review the new standard set by the Second Circuit for Jiability under RICO in the context of arbitration. The RICO statute and relevant case law holds unequivo- cally that liability under RICO requires a finding of a ‘‘pat- tern’’ based on at least two acts of ‘‘racketeering activity.”’ 18 U.S.C. § 1961(5). See H.J. Inc. v. Northwestern Bell Tele- phone Company, 57 U.S.L.W. 4951, 4953 (1989); U.S. v. Indelicato, 865 F.2d 1370, 1381 (2d Cir. 1989). Here, the arbitrators identified the conversion of cargo by TRIUMPH during the voyage to Corpus Christi as one rack- eteering act in violation of 18 U.S.C. § 659. But the arbitra- tors did not identify a second ‘‘racketeering act’’ in support of their finding of a RICO pattern, merely concluding that the conversion was ‘‘part of a pattern sufficient to satisfy the requirements of civil liability under . . . RICO.’’ App., 29a. 10 By upholding this award, the Second Circuit has created a new standard for RICO claims in arbitration. Under this new principle of law, arbitrators need not find the two statutorily required predicate acts to award treble damages under RICO, but may rely instead on one predicate act coupled with alle- gations of ‘‘prior misconduct.”’ In its recitation of the facts, the Second Circuit stated that the arbitrators found, that there was evidence of four other substantial short- ages in crude oil cargo carried by the vessel over a two- year period; that the managing company of the chartered vessel also managed, but did not own, four other vessels in the same group as the chartered vessel; that one of the vessels was found to have converted crude oil cargo in a similar manner during a voyage; and that three of the vessels were suspected of doing so. TRIUMPH, 924 F.2d at 469; App., 5a. The court concluded that the arbitrators had found evidence of two sorts of misconduct—alleged shortages on previous voyages of TRIUMPH and events alleged to have occurred on other ves- sels. None of this ‘‘evidence,’’ however, establishes that Tri- umph has committed a second racketeering act triggering RICO liability. Any reliance by the arbitrators (or the Second Circuit) on the alleged conversion of cargo on TRIAD, TRISUN, TRI- LIGHT and TRISTAR was improper. The arbitrators dis- cussed events occurring on these other vessels as part of their RICO “‘pattern’’ analysis, (App., 28a & n. 14), however, these vessels were not owned, operated or managed by Tri- umph, and Triumph was not shown to have any ownership interest or responsibility for them. The only link among the vessels found by the arbitrators was that they were all man- aged by the same company. App., 28a. That management company was not a party to the arbitration and was not shown to have any connection to Triumph. Triumph has independent corporate status, and absent evidence sufficient to ‘‘pierce the corporate veil,’’ cannot be held vicariously lia- 1] ble for another’s actions. See Puma Industrial Consulting, Inc. v. Daal Associates, Inc., 808 F.2d 982, 986 (2d Cir. 1987). If the Second Circuit Decision is upheld, Triumph will be forced to pay damages for the alleged misconduct of unre- lated third parties occurring on vessels over which it had no control. Such a result would violate fundamental Due Process principles, because Triumph is only liable for its own actions. For this reason alone, the Second Circuit Decision must be set aside. The ‘‘rules of due process and other constitutional protections must extend to [arbitration].’’ Dewey v. Reynolds Metal Co., 291 F. Supp. 786, 790 (W.D. Mich. 1969); Amal- gamated Food v. Great A & P Co., 415 F.2d 185, 189 (3rd Cir. 1969). Similarly, although the Second Circuit referred several times to Triumph’s alleged ‘‘prior practice’’ and its ‘‘miscon- duct’’ on ‘‘other voyages,’’ TRIUMPH, 924 F.2d at 470-71; App., 8a, the record contains no evidence of ‘‘racketeering activity’’ occurring on TRIUMPH’s prior voyages. At most, the arbitrators stated that they were presented with allega- tions of shortages occurring on the vessel’s previous voyages. However, allegations of short delivery of cargo on previous voyages are not equivalent to racketeering acts under RICO; to qualify as such a racketeering act, there must be a finding that, for example, the shortage resulted from conversion of cargo in violation of 18 U.S.C. § 659. The arbitrators made no such finding with respect to the prior voyages. To find a second racketeering act based on TRIUMPH’s prior voyages, the arbitrators would have had to make a determination that there was in fact a shortage on a prior voyage, that such shortage resulted from conversion of cargo and was within the RICO definition of a ‘‘racketeering act’’ and, finally, that Triumph was responsible for that theft. Not only did the arbitrators make no such finding, but as dis- cussed above, the arbitrators only had the authority to make such determinations with respect to disputes ‘‘arising out of’’ 12 the voyage covered by the Charter, not with respect to pre- vious voyages under other charters. By ordering the confirmation of the Final award, the Second Circuit has established a new rule for RICO arbitra- tions; the arbitrators can base liability under the Act on just one predicate act, notwithstanding the express provisions of the statute that a pattern of racketeering activity ‘‘requires at least two acts of racketeering activity.’’ 18 U.S.C. § 1961(5). Certiorari should be granted so that this Court can review this new standard for RICO liability in the arbitration con- text. CONCLUSION For the foregoing reasons, the petition for certiorari should be GRANTED. Dated: June 17, 1991 Respectfully submitted, JOSEPH C. SMITH BURLINGHAM UNDERWOOD & LORD One Battery Park Plaza New York, New York 10004 (212) 422-7585 Counsel of Record for Petitioner Of Counsel R. SCOTT ERVIN BURLINGHAM UNDERWOOD & LORD ~ — a Z. t2) a, a, < NE Ry SE YOST Ae NR ate ee - ne cig Ae ¢% 4 ‘ j as e ; : eh Ps LER, yesh ee " gs ene : ea BIE 2 : : is, er , + Ree Fes. ; roa la UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT oe Nos. 820, 978—August Term 1990 Argued: January 7, 1991 Decided: January 28, 1991 Docket Nos. 90-7778, -7800 > KERR-MCGEE REFINING CORPORATION, Plaintiff-Appellant, Cross-A ppellee, —against— M/T TRIUMPH, her boilers, tackle, etc., Defendant-A ppellee, TRIUMPH TANKERS, LTD., Defendant-A ppellee, Cross-Appellant. Before: FEINBERG, NEWMAN and MCLAUGHLIN, Circuit Judges. ieee 2a Appeal and cross-appeal from a judgment of the United States District Court for the Southern District of New York, William C. Conner, J., confirming an arbi- tration panel’s Partial Final Award but vacating the panel’s Final Award on the ground that the panel exceeded its authority under the arbitration agreement. Reversed in part and affirmed in part. a ae JOHN P. VAYDA, New York, NY (Nourse & Bowles, Maria L. Alonso, Peter T. Jen- sen, of Counsel), for Plaintiff- Appellant, Cross-Appellee. R. SCOTT ERVIN, New York, NY (Burlingham, Underwood & Lord, Joseph C. Smith, of Counsel), for Defendant-Appellee, Cross-Appellant. ed FEINBERG, Circuit Judge: Plaintiff Kerr-McGee Refining Corp. (Kerr-McGee) appeals from a judgment entered in accordance with an order of the United States District Court for the South- ern District of New York, William C. Conner, J., dated July 10, 1990, vacating an arbitration panel’s Decision and Final Award, dated March 28, 1990, which awarded Kerr-McGee treble damages under the Racketeer Influ- enced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68. The principal question on appeal is whether the arbitration panel exceeded its authority under a voyage charter party (the Charter) because the 3a panel considered evidence of voyages not covered by the Charter as proof of the ‘‘pattern’’ and ‘‘enterprise’’ ele- ments of a RICO violation. Judge Conner’s July 1990 order (and the subsequent judgment) also confirmed a Partial Final Award issued by the arbitration panel on September 7, 1988. Defendant Triumph Tankers, Ltd. (Triumph) cross-appeals from that portion of the district court’s judgment. For reasons given below, we reverse the judgment with respect to the March 1990 Final Award and affirm with respect to the September 1988 Partial Final Award. Background The Charter was entered into in March 1984 by Kerr- McGee, as charterer, and Triumph, as owner of the ves- sel. Later that month, Triumph loaded 539,999 net barrels of crude oil at a terminal in Scotland, and this amount was incorporated into a bill of lading that showed Kerr-McGee as consignee at Corpus Christi, Texas. When the vessel arrived at Corpus Christi and the oil was discharged, Kerr-McGee’s measurements showed that only 528,060.65 net barrels had been received from the vessel. Kerr-McGee accordingly alleged short delivery of cargo and withheld freight in the amount of $213,000 to cover the alleged shortage. Triumph then sought arbitration to recover the bal- ance of the freight withheld by Kerr-McGee, since the Charter required that ‘‘[a]Jny and all differences and dis- putes of whatsoever nature arising out of this Charter shall be put to arbitration.’’ Kerr-McGee subsequently paid the freight balance, but counterclaimed in the arbi- tration for damages resulting from the alleged short delivery. 4a During the course of the arbitration, Kerr-McGee obtained information, including numerous detailed photographs of the vessel taken while it was being dis- mantled for scrap metal in China, that showed that a permanent concealed tank had been built into one of the vessel’s cargo tanks. The vessel had been further modi- fied to allow oil to be transferred from the cargo tank to the concealed tank. In the words of the arbitration panel, ‘‘[w]hat appeared at first sight to be a fairly sim- ple case of a short delivery developed over the seven hearings into a complex matter involving allegations of cargo stealing by this vessel, as well as other vessels operated by the same managers, perjury by the vessel’s Chief Engineer, alterations to the Deck and Engine logs, etc.’’ Because of the alleged theft of cargo, Kerr-McGee amended its claim in arbitration to recompute its dam- ages and to seek damages under RICO. In September 1988, the three-person arbitration panel issued a Partial Final Award in favor of Kerr-McGee for the value of cargo short delivered, together with interest. The arbitrators deferred decision on a number of other issues, including Kerr-McGee’s RICO claim, its alterna- tive claim for punitive damages and its claim for attor- neys’ fees and costs. In March 1990, the arbitration panel issued its Deci- sion and Final Award, with one arbitrator dissenting. The majority found, among other things, that the modi- fication to the vessel’s cargo tank existed at the time of the chartered voyage; that the modification was perma- nent and was designed to divert cargo on more than one occasion; that 7,497.4 net barrels of Kerr-McGee’s cargo was converted in violation of 18 U.S.C. § 659, which deals with theft from interstate or foreign shipments; Sa that there was evidence of four other substantial short- ages in crude oil cargo carried by the vessel over a two- year period; that the managing company of the chartered vessel also managed, but did not own, four other vessels in the same group as the chartered vessel; that one of the vessels was found to have converted crude oil cargo in a similar manner during a voyage; and that three of the vessels were suspected of doing so. The majority accordingly concluded that Triumph had converted Kerr-McGee’s cargo through a pattern of racketeering and awarded under RICO treble damages, costs and attorneys’ fees, all totalling $512,520.10. Kerr-McGee then moved in the district court to con- firm the Partial Final and Final Arbitration Awards, and Triumph cross-moved to vacate the awards. The district court confirmed the Partial Final Award after finding that it was not time-barred, but vacated the Final Award on the ground that the arbitration panel exceeded its power when it relied upon occurrences on other voyages not covered by the Charter in order to find a ‘‘pattern’’ and ‘‘enterprise’’ as required by RICO. This appeal and cross-appeal followed. Discussion A. The Final Award There is no longer any doubt that a RICO claim is arbitrable. See Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 242 (1987). Thus, whether the arbitration panel exceeded its authority under the Char- ter in imposing RICO liability on Triumph turns solely on the issue of whether the claim was nonarbitrable because it was beyond the intended scope of the arbitra- 6a tion agreement. In deciding this issue, we are guided by the principle that ‘‘any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitra- tion, [including problems concerning] the construction of the contract language itself.’” Moses H. Cone Memo- rial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25 (1983). Kerr-McGee argues that the district court did not adhere to this principle when it determined that the RICO claim was outside the scope of the Char- ter. We agree. The district court vacated the Final Award on the ground that because the parties agreed to arbitrate only those claims ‘‘arising out of’’ the Charter, the arbitra- tion panel exceeded its authority when it relied on epi- sodes occurring on voyages not covered by the Charter to establish the predicate acts necessary for a RICO vio- lation. We believe that this was too restrictive a con- struction of the parties’ intent as expressed in the Charter that ‘‘/aJny and all differences and disputes of whatsoever nature arising out of this Charter shall be put to arbitration’’ (emphasis added). The dispute here was directly based on a shortage in the fuel oil delivered at the end of the single voyage covered by the Charter. It is true that Kerr-McGee thereafter obtained evidence that the shortage was intentional and part of a prior practice. This evidence, however, did not alter the facts that the dispute arose ‘‘out of’’ the Charter and the damages were inflicted during Triumph’s performance under it. Even though the arbitration panel looked at other voyages, it did not determine the liability of a per- son not party to the contract, as was the case in Orion Shipping & Trading Co. v. Eastern States Petroleum Corp. of Panama, S.A., 312 F.2d 299 (2d Cir.), cert. denied, 373 U.S. 949 (1963), relied on by Triumph. The 7a award here imposes liability only on Triumph, a party to the agreement to arbitrate. Citing Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840 (2d Cir. 1987), Triumph argues that the RICO claim was nonarbitrable. Genesco involved a plaintiff that had purchased fabric from the defendants over the years, and made each purchase on a written purchase order form containing an arbitration provision. Plaintiff asserted a RICO claim, and the Genesco court held the claim arbitrable because ‘‘the predicate acts of [plain- tiff’s} RICO claim all derive from the parties’ transac- tions under the sales agreements.’’ Id. at 848. Triumph points out that the predicate acts here, in contrast, were not performed under contracts between the parties at all, much less under contracts containing an arbitration clause. We do not believe, however, that Genesco determines the result here, although, if anything, that decision sup- ports the position taken by Kerr-McGee. The panel in that case did look to transactions under a number of sales agreements in determining that a RICO claim could be brought under them, even though each sales agreement provided only for arbitration of ‘‘[aJll claims and disputes of whatever nature arising under this con- tract.’’ 815 F.2d at 845 (emphasis added). There is noth- ing in Genesco suggesting that the arbitration provision in any of the sales agreements expressly applied to dis- putes arising out of the series of agreements. The panel nonetheless held the RICO claim arbitrable, reasoning that ‘“‘if the allegations underlying the claims ‘touch matters’ covered by the parties’ [arbitration agreement], then those claims must be arbitrated, whatever the legal labels attached to them.’’ 815 F.2d at 846. That same 8a logic supports the conclusion that Kerr-McGee’s RICO claim is arbitrable. Once the parties have agreed to arbi- trate disputes arising under an agreement—here the Charter—the arbitrators should be able to consider any conduct of the parties that bears on the damages appro- priate for a covered dispute. The dispute here over the oil shortage is clearly arbitrable; the arbitrators could treble that award if its occurrence violated the antitrust laws. Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth, Inc., 473 U.S. 614 (1985). Or, in an appro- priate case, the arbitrators could enhance it by punitive damages if prior misconduct established entitlement to such damages. Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378 (llth Cir. 1988). Indeed, punitive dam- ages can be awarded because the party on whom they are imposed has repeatedly engaged in the offensive con- duct even though the prior dealings did not involve the party claiming punitive damages. Similarly, the arbitrators here could treble the award if the misconduct was part of a RICO pattern. If Tri- umph’s argument that the arbitrators could not look to what happened on other voyages were carried to its logi- cal extreme, a RICO claim could not be arbitrated except in the rare instances in which all the predicate acts occurred on a single voyage. In general, this court has hardly been overly receptive to civil RICO claims, see Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482 (2d Cir. 1984), or to their arbitrability, see McMahon v. Shearson/American Express, Inc., 788 F.2d 94 (2d Cir. 1986). But the Supreme Court reversed us in both cases, Sedima, 473 U.S. 479 (1985); Shearson, 482 U.S. 220 (1987), and has made it clear that RICO claims are arbi- trable. We do not believe that the Court, in approving arbitration for RICO claims, thought it was creating a 9a RICO arbitration forum only for situations in which all acts constituting the pattern (and the enterprise) arise under an agreement to arbitrate, requiring the parties in other situations to pursue the basic damage claim in arbitration and to sue thereafter for treble damages under RICO in a court. Since RICO claims are arbitra- ble, we see no reason here for limiting arbitrability to those situations in which all of the necessary prior con- duct giving rise to RICO liability is governed by an agreement to arbitrate. Indeed, after the district court vacated the Final Award, Kerr-McGee filed a ‘‘precautionary’’ complaint in the district court in order to state its RICO claim in that forum. Such a splintering of actions is contrary to the broad language used in the arbitration provision of the Charter, and would undermine the benefits the par- ties sought to achieve by agreeing to arbitrate ‘‘any and all’’ of their differences under it. We have held that a court must accord ‘‘the narrowest of readings’’ to the ‘fexcess Of powers’’ provision of 9 U.S.C. § 10(d), which the district court relied on in vacating the Final Award. Andros Compania Maritima, S.A. v. Marc Rich & Co., A.G., 579 F.2d 691, 703 (2d Cir. 1978). That was not done here. Accordingly, we find that the arbitration panel acted within the scope of the Charter when it awarded Kerr- McGee treble damages under RICO for Triumph’s con- version of the chartered cargo, and that the district court erred by not confirming the Final Award. 10a B. The Partial Final Award Under the Arbitration Act, a party has one year to avail itself of summary proceedings for confirmation of an award. 9 U.S.C. § 9. An award that finally and con- clusively disposes of a ‘“‘separate independent claim’’ may be confirmed even if it does not dispose of all the claims that were submitted to arbitration. See Metallge- sellschaft A.G. v. M/V Capitan Constante, 790 F.2d 280, 283 (2d Cir. 1986). Triumph contends that Kerr- McGee’s motion to confirm the Partial Final Award is time-barred, because that award was a full and final dis- position of the shortage claim and the motion was made more than one year after the date of the award. We question whether the one-year limitation should apply to a party seeking confirmation of an award that does not end the arbitration, since such a rule ‘‘will make arbitra- tion more complicated, time consuming and expensive.”’ Id. at 285 (Feinberg, J., dissenting). We need not resolve this issue, however, since we find that the Partial Final Award did not finally dispose of a separate inde- pendent claim, thus rendering the one-year limitation inapplicable in any event. When it issued the Partial Final Award, the arbitra- tion panel expressly left open whether, as a result of Tri- umph’s breach, Kerr-McGee was also entitled to punitive or RICO damages, costs and attorneys’ fees. It is thus apparent, as the district court found, that this award merely decided the issue of liability and partial damages on the shortage claim, which was a predicate act to the RICO claim, and did not finally dispose of an independent claim because it left open the question of damages. Cf. Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 414 (2d Cir. 1980). lla For the above reasons, we reverse the district court’s judgment insofar as it vacates the Final Award and affirm its judgment insofar as it confirms the Partial Final Award. The district court is directed to enter judg- ment confirming the Final Award in its entirety. — 12a Opinion and Order UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 84 Civ. 3299 (WCC) — KERR-MCGEE REFINING CORP., Plaintiff, —against— TRIUMPH TANKERS LTD., Defendants. > APPEARANCES: NOURSE & BOWLES Attorneys for Plaintiff One Exchange Plaza 55 Broadway New York, New York 10006 John P. Vayda, Esq. Maria L. Alonso, Esq. Of Counsel BURLINGHAM UNDERWOOD & LORD Attorneys for Defendant One Battery Park Plaza New York, New York 10004 Joseph C. Smith, Esq. R. Scott Ervin, Esq. Of Counsel 13a CONNER, D.J.: This action is presently before the Court on the motion of plaintiff Kerr-McGee Refining Corp. (‘‘Kerr-McGee’’) to confirm the Partial Final and Final Arbitration Awards and the cross motion of defendant Triumph Tankers, Ltd. (‘‘Tri- umph’’) to vacate such awards. Triumph moves to vacate the partial award as time-barred and the final award on the grounds that the arbitration panel (1) exceeded their powers, (2) are guilty of misbehavior prejudicial to Triumph and (3) acted in manifest disregard of the law. For the following rea- sons, the partial award is confirmed and the final award is vacated. FACTS The present dispute arises out of a voyage charter party (the ‘‘Charter’’) dated March 5, 1984, between Kerr-McGee Refining Corp. (‘‘Kerr-McGee’’), as charterer and Triumph Tankers, Ltd. (‘‘Triumph’’), as owner of the vessel. On March 9, 1984, the vessel loaded 539,999 net bbls. of Beatrice Crude Oil at the Nigg Oil Terminal in Scotland and on March 10, 1984, sailed for Corpus Christi, Texas, arriving on March 28, 1984. Upon arrival at Corpus Christi, Kerr-McGee found that the amount of cargo on board was only 538,250.09 net bbls. Following discharge of the oil, Kerr- McGee discovered that a total of only 528,060.65 net bbls. had been received from the vessel. On the basis of these mea- surements, Kerr-McGee alleged short delivery and withheld freight in the amount of $213,000. Because the Charter provided for arbitration of disputes ‘arising out of’’ the Charter, Triumph sought arbitration to recover the balance of freight withheld by Kerr-McGee. Kerr- McGee subsequently paid the balance but counterclaimed in the arbitration for $150,638.59 as damages for short delivery of 4,835.91 net bbls. of cargo. Thereafter, Kerr-McGee increased the amount of its shortage claim to 11,938.35 net bbls. of cargo and sought treble damages based on the Rack- l4a eteer Influenced and Corrupt Organizations Act (‘‘RICO’’), 18 U.S.C. §§ 1962-1968. On September 7, 1988, the arbitration panel issued a Par- tial Final Award unanimously finding in favor of Kerr- McGee for the value of 7,497.41 net barrels of cargo short delivered, together with interest to the date of the Partial Final Award at 9% per annum, in the combined amount of $332,138.41 with interest to continue at 10% per annum until payment or judgment. The arbitrators deferred Kerr-McGee’s RICO claim for which both parties submitted further briefs. On March 28, 1990, the panel issued its Decision and Final Award whereby the majority concluded that Triumph had converted 7,497.41 net bbls. of Kerr-McGee’s cargo through a p.ttern of racketeering and awarded treble damages under RICO, costs, attorneys’ fees and interest totaling $512,520.10. In 1984, prior to the arbitration, Kerr-McGee commenced this action seeking to attach assets of Triumph located in New York as security for its claim. By agreement of the par- ties, this action was discontinued pending arbitration, upon the posting of security by Triumph’s protection and indem- nity underwriter. By order dated September 13, 1985, the Court dismissed this action subject to reopening for the pur- pose of confirming or vacating the arbitration award. The Court now considers the cross motions to confirm and to vacate. DISCUSSION I. Partial Final Award Triumph first asks this Court to vacate the Partial Final Award of September 7, 1988 because Kerr-McGee’s motion for confirmation is time-barred. Triumph claims that the par- tial award is a full and final disposition of the shortage claim, subject to confirmation within one year from the date issued, September 7, 1989. Kerr-McGee claims to the con- trary, that the partial award did not fully and separately dis- 15a pose of an independent claim and therefore was not subject to confirmation until the date of the final award, allowing confirmation at the present time. The Federal Arbitration Act (‘‘Act’’) provides that if a party wishes to avail itself of summary proceedings for con- firmation of an award, at any time within one year after the award is made, any party to the arbitration may apply to the court for an order confirming the award... 9 U.S.C. § 9. This provision limits the time in which a party may move for confirmation to one year after the date of the award. The law is well settled that an interim award which finally and conclusively disposes of a separate independent claim may be confirmed although it does not resolve all the claims that were submitted to arbitration. Metallgesellschaft A.G. v. M/V Captain Constante, 790 F.2d 280, 283 (2d Cir. 1986); Eurolines Shipping Co. v. Metal Transport Corp., 491 F. Supp. 590, 592 (S.D.N.Y. 1980). If, however, the award left open the amount of damages or did not fully dispose of a distinct claim, the limitations period is tolled until the final award. See Metallgesellschaft A.G. v. M/V Captain Con- stante, 790 F.2d 280, 283 (2d Cir. 1986); Michaels v. Mari- forum Shipping. S.A., 624 F.2d 411, 414 (2d Cir. 1980) ({interim 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’’); Puerto Rico Maritime Etc. v. Star Lines, 454 F. Supp. 368, 372 (S.D.N.Y. 1978) (declaration of liability leaving the question of the amount owing unan- swered and the possibility of further disputes between the parties not separable and non-dependent). The question thus before the Court in determining whether the one-year period has run is whether the Partial Final Award finally and defin- itely disposed of a separate and independent claim. In the Partial Final Award, the panel determined that Tri- umph breached the charter and was liable for shortage dam- ages. Specifically, the panel found that Triumph ‘‘failed to deliver 7,497.41 net bbls. of Beatrice Crude, which resulted in l6a a loss to Charterers of $233,544.32.’’ The panel further awarded interest to Kerr-McGee, allocated the arbitrators’ fees and set interest at 10% to run until payment was made or the award was reduced to judgment. Kerr-McGee argues that because the panel left open whether, as a result of Tri- umph’s breach, Kerr-McGee was also entitled to costs, attor- neys’ fees and punitive and/or RICO damages and whether Triumph was entitled to interest for late payment of freight, the Partial Final Award did not finally dispose of an inde- pendent claim, but merely decided the issue of liability and partial damages on the predicate shortage claim. This Court agrees. Kerr-McGee likens its case to that of Michaels v. Mari- forum Shipping, S.A., 624 F.2d 411 (2d Cir. 1980), in that while the panel established a value for the damages Kerr McGee was entitled to for its short-delivered cargo, it did not determine all of Kerr-McGee’s damages arising out of its sin- gle shortage claim. Because all damages stem from the short- age claim, determination of Triumph’s liability and the value of the short cargo alone does not completely dispose of an independent claim. Tied to that claim are the costs, attor- neys’ fees and punitive and/or RICO damages which are determined in relation to the substantive claim of conversion or theft. II. Final Award Section 9 of the Act provides that when an application for an order confirming an arbitration award is made to a dis- trict court, the court ‘‘must grant such an order unless the award is vacated, modified, or corrected as prescribed in sec- tions 10 and 11 of this title.’’ 9 U.S.C. § 9. Section 10 pro- vides, in relevant part, that an award may be vacated where the arbitrators ‘‘exceeded their powers.’ 9 U.S.C. § 10(d). Triumph challenges the panel majority’s award of treble damages under RICO! as exceeding their powers, claiming 1 18 U.S.C. 1964(c) provides: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate PUD NGM reese 17a that (1) the scope of the arbitration agreement did not empower the panel to consider a RICO claim, and 2) the panel considered evidence that had no relation to this voyage and thus did not ‘‘arise out of’’ the charter party. Although the charter party between Kerr-McGee and Tri- umph does not specifically include RICO as a remedy for breach, it provides that: Any and all differences and disputes of whatsoever nature arising out of this Charter shall be put to arbitra- tion... While the award of civil RICO damages indeed exceeds the compensatory measure of damages typical in breach of con- tract claims, the composite claim before the panel no longer concerned only breach of contract but included a RICO ele- ment on which treble damages are expressly authorized. Therefore, Triumph’s contention that the panel was not empowered to award the equivalent of punitive damages in a breach of contract claim is inapt. The panel, empowered by the arbitration agreement to consider ‘‘any and all differences and disputes of whatsoever nature,’’ properly considered the RICO claim. Shearson/American Express, Inc. v. McMahon, 107 S.Ct. 2332, 2335 (1987) (RICO claim arbitrable under the terms of the Arbitration Act where parties contracted to arbi- trate ‘‘any controversy arising out of or relating to my accounts, to transactions with you for me or to this agree- ment or the breach thereof.’’) Accordingly, it can not be stated that the panel necessarily exceeded its power in consid- ering the RICO claim and awarding treble damages. Triumph further contends that the panel majority exceeded its power when it considered Kerr-McGee’s allegations that Triumph was part of a group of shipowners engaged in a **pattern’’ of cargo conversion over a period of several years. Triumph argues that such consideration ignores the parties’ agreement to arbitrate only those claims ‘‘arising out of this United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. 18a Charter,’’ a charter which governed only the single voyage from Nigg Terminal to Corpus Christi. In its Final Award, two of three arbitrators determined that the theft of cargo aboard the Triumph was part of a pat- tern sufficient to satisfy the requisites of civil liability under 18 U.S.C. §§ 1962(a) and (c) of RICO, including the ‘‘pat- tern’’ and ‘“‘enterprise’’ requirements. In doing so, the panel majority expressly concluded that the owners of TRISUM, TRILIGNT, TRISTAR and TRIAD were converting cargo in a similar manner and that because Triumph not only was part of the same group but shared the same managing agent as these vessels, Triumph should be held accountable for their actions. The Court agrees with Triumph that because the parties agreed to arbitrate only those claims ‘‘arising out of’’ the Charter, the panel majority exceeded its power in looking to occurrences on other voyages in finding a pattern and enterprise to satisfy the elements of RICO and was accordingly without authority to award RICO damages on that basis.” CONCLUSION For the above stated reasons, Kerr-McGee’s motion to con- firm the partial award dated September 7, 1988 in the princi- pal amount of $233,544.32 plus $98,594.09 interest through the date of the award, plus interest on the principal amount at the rate of 10% per annum until payment has been made in full is granted and Triumph’s motion to vacate the final award is granted. SO ORDERED. United States District Judge Dated: July 10, 1990 New York, New York 2 Because this Court finds that the panel exceeded its power, it is unnecessary to determine whether the panel was guilty of misbehavior preju- dicial to Triumph or whether the panel acted in manifest disregard of the law. 19a Denial of Rehearing UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT DOCKET NUMBERS 90-7778, 90-7800 — At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States courthouse, in the City of New York, on the 19th day of March, one thou- sand nine hundred and ninety-one Snell KERR-MCGEE REFINING CORPORATION Plaintiff-Appellant Cross-Appellee, , M/T TRIUMPH, her engines, boilers and tackle, etc. Defendant-Appellee, TRIUMPH TANKERS, LTD. Defendant-Appellee, Cross-A ppellant. aaa A petition for rehearing containing a suggestion that the action be reheard in banc having been filed herein by Appel- lee Triumph Tankers, Ltd. Upon consideration by the panel that heard the appeal, it is Ordered that said petition for rehearing is DENIED. It is further ordered that the suggestion for rehearing in banc has been transmitted to the judges of the court in regu- lar active service and to any other judge that heard the appeal and that no such judge has requested that a vote be taken thereon. Elaine B. Goldsmith Clerk rien 20a Decision and Final Award In the Matter of the Arbitration between Triumph Tankers Ltd., as Owners of the TRIUMPH, —and— Kerr-McGee Refining Corp., as Charterers. +> Before: Alexis Nichols Louis P. Sheinbaum, Esq. Manfred W. Arnold, Chairman Appearances: Burlingham Underwood & Lord for and on behalf of Triumph Tankers Ltd. by Joseph C. Smith, Esq., of Counsel Nourse & Bowles for and on behalf of Kerr-McGee Refining Corp. by John P. Vayda, Esq., of Counsel On September 7, 1988, the panel issued its Partial Final Award’ in Charterers’ favor for the value of cargo short delivered, together with interest. At the time, the panel did not render a decision on the fol- lowing claims or issues: a) whether or not Owners were privy to the modification as a pre-existing condition when (or after) they acquired the vessel, or whether Owners in fact arranged for those struc- tural changes.” b) Charterers’ claim for treble damages for Owners con- verting or taking Charterers’ cargo under the Racketeer Influ- 1 SMA Award 2508 (1988). 2 Page 5 of the award. ae ND RO 2, me A aN a, lee —eae Die a ip sat