DUFERCO S.A., Plaintiff-Appellant, v. TUBE CITY IMS, L.L.C., R. Kelly Freedman Holding Group, L.L.C., Defendants-Appellees, 464 F. App'x 28

SUMMARY ORDER Duferco S.A. (“Duferco”) appeals an order confirming an arbitral award in favor of Tube City IMS, L.L.C. (“Tube City”) and R. Kelly Freedman Holding Group, L.L.C. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. “We review a district court’s decision to confirm an arbitration award de novo to the extent it turns on legal questions, and we review any findings of fact for clear error.” Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir.2003).

An award may be vacated if, inter alia, an arbitrator is “guilty of misconduct ... in refusing to hear evidence pertinent and material to the controversy.” 9 U.S.C. § 10(a)(3). Duferco argues such a vacatur can be based on an arbitrator’s error of law even if the arbitrator did not act in manifest disregard of the law. See Klaveness, 333 F.3d at 388-90 (discussing manifest disregard). Even supposing this to be true, Duferco does not show the arbitrator erred, let alone committed an error in “bad faith or so gross as to amount to affirmative misconduct.” United Paperworkers Int’l Union v.

Misco, Inc., 484 U.S. 29, 40, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (reviewing arbitrator’s evidentiary determination).

According to Duferco’s contract to purchase scrap steel from Tube City, measurement of the impurity level of the scrap would be performed by an independent inspector and would be “final at loadport.” Duferco argues that the arbitrator misinterpreted New York law in holding that evidence from subsequent inspections— which could indicate the independent inspector grossly erred—is insufficient to establish that the inspector acted in bad faith and therefore insufficient to overcome the “final at loadport” provision.

But Duferco failed to present to the arbitrator any New York authority in which a court found such evidence sufficient, let alone precedent that bound the arbitrator to consider—at the first phase of the arbitration—the subsequent inspection as evidence that the first inspection was conducted in bad faith. Cf. Sempra Energy Trading Corp. v. BP Prods. N. Am., Inc., 52 A.D.3d 350, 350, 860 N.Y.S.2d 71 (1st Dept 2008) (“[P]ostdischarge report ... was not material under the parties’ agreement ] to allege the possibility of manifest error in the official binding predischarge report.”).

Finding no merit in Duferco’s remaining arguments, we hereby AFFIRM the judgment of the district court.