Opinion · Court of Appeals for the First Circuit

Commonwealth Coatings Corporation v. Continental Casualty Company

Commonwealth Coatings Corp. v. Cont’l Cas. Co., 382 F.2d 1010 (1st Cir. 1967)

Type: Opinion
Court: Court of Appeals for the First Circuit
Jurisdiction: Federal
Date: 1967-09-27
Topic: general

PER CURIAM. This is an appeal by the losing party to an arbitration award in which he invokes the provisions of 9 U.S.C. § 10 (1964). The sole ground of the appeal is the failure of one Capacete, the impartial arbitrator selected by the other two, and of appellee Samford, the successful party, to disclose the past relationship between Capacete and Samford. Briefly, this relationship was as follows. Capacete was a majority owner of Foundation Engineering Company of Puerto Rico, a firm of very broad activities in the community and which, over a period of years, performed drilling operations for foundation investigations and conducted laboratory testing of construction materials for Samford.

Citator

UpLaw has not yet analyzed Commonwealth Coatings Corporation v. Continental Casualty Company. The absence of a flag is not a finding that it is good law.

Cited by: 8 opinions

COMMONWEALTH COATING v. CONTINENTAL CASUALTY,382 F.2d 1010(1st Cir. 1967)

COMMONWEALTH COATINGS CORPORATION, Plaintiff, Appellant, v. CONTINENTAL

CASUALTY COMPANY et al., Defendants, Appellees.

No. 6857.

United States Court of Appeals, First Circuit.

September 27, 1967.

Page 1011

Emanuel Harris, New York City, with whom Carlos A. Romero Barcelo, San Juan, P.R., Max E. Greenberg, New York City, and Segurola, Romero Toledo, San Juan, P.R., were on the brief, for appellant.

Overton A. Currie, Atlanta, Ga., with whom Federico Ramirez-Ros, Santurce, P.R., Edward H. Wasson, Jr., Atlanta, Ga., Ramirez, Segal Latimer, Santurce, P.R., and Smith, Currie Hancock, Atlanta, Ga., were on the brief, for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

PER CURIAM.

This is an appeal by the losing party to an arbitration award in which he invokes the provisions of9 U.S.C. § 10(1964). The sole ground of the appeal is the failure of one Capacete, the impartial arbitrator selected by the other two, and of appellee Samford, the successful party, to disclose the past relationship between Capacete and Samford. Briefly, this relationship was as follows. Capacete was a majority owner of Foundation Engineering Company of Puerto Rico, a firm of very broad activities in the community and which, over a period of years, performed drilling operations for foundation investigations and conducted laboratory testing of construction materials for Samford. These services, performed by the firm under Capacete's general supervision, and to some extent requiring his direct intervention, were in several instances rendered with regard to the projects involved in the arbitration. Capacete also did some work for the architects on the projects. The payments received were a very small part of Capacete's income for the years involved, and none of the services related to matters in question in the arbitration, or was rendered during the proceedings. It is appellee's position that there was no duty to disclose, and that if appellant desired knowledge as to the existence of such past relationships it was incumbent upon him to inquire, citing Ilios Shipping Trading Corp. v. American Anthracite Bituminous Coal Corp., D.C.N.Y., 1957,148 F. Supp. 698, aff'd, 2 Cir.,245 F.2d 873.

In our opinion there is a difficult line between what should, in good faith, be volunteered, and what may be left for inquiry. We may agree with appellant that where there is a disturbingly close relationship the very failure toPage 1012make disclosure could be evidence of partiality, and we think it would have been far better if there had been disclosure here. However, we cannot say that the relationship was sufficiently close to establish "evident partiality" within the statute as a matter of law. Cf. Milliken Woolens, Inc. v. Weber Knit Sportswear, Inc.,11 A.D.2d 166,202 N.Y.S.2d 431, aff'd,9 N.Y.2d 878,216 N.Y.S.2d 696,175 N.E.2d 826. As to appellant's companion contention, the court was well warranted in finding that there was no prejudice or bias in fact manifested in the course of the proceedings. Indeed, there was considerable evidence which negatived it.

Affirmed.Page 146