JSP Agency, Inc. v. American Sugar Refining Co. of New York, 355
| Citation | 752 F.2d 56 |
| Decision Date | 11 January 1985 |
| Docket Number | No. 355,D,355 |
| Parties | 118 L.R.R.M. (BNA) 2343, 1985 A.M.C. 1826 JSP AGENCY, INC., Plaintiff-Appellant, v. AMERICAN SUGAR REFINING CO. OF NEW YORK, Amstar Corp., Northern Lines, Inc., Athenian Shipping Corp., Caribbean Charterers & Operators, Ltd., Ambrit Sugars, Inc., C. Czarnikow, Inc., Czarnikow-Rionda Company, Inc., B.W. Dyer & Company, Farr Mann & Co., Inc., M. Golodetz & Co., Inc., Lonray, Inc., Amerop, Division of Westway Trading Corporation, Woodhouse, Drake & Carey, Inc., Florida Sugar Marketing and Terminal Association, Inc., Hogan & Company, Inc., Philippine Sugar Trading Corp., Subsidiary of National Sugar Trading Association, Marc Rich & Co., Sugar Ltd. and Allied Towing Corporation, Subsidiary of Allied Marine Industries, Defendants-Appellees. ocket 84-7611. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Peter C. Lambos, New York City (Lambos, Flynn, Nyland & Giardino, New York City, of counsel), for plaintiff-appellant.
William A. Sullivan, New York City (James M. Kenny, McHugh, Leonard & O'Conor, New York City, of counsel), for defendants-appellees Ambrit Sugars, Inc., C. Czarnikow, Inc., Czarnikow-Rionda Co., Inc., M. Golodetz & Co., Inc., Lonray, Inc., Amerop, Div. of Westway Trading Corp., Florida Sugar Marketing and Terminal Ass'n, Inc., Hogan & Co., Inc. and Allied Towing Corp., Subsidiary of Allied Marine Industries.
Mel P. Barkan, New York City (Steven R. Uffner, Brauner, Baron, Rosenzweig, Kligler, Sparber & Bauman, New York City, of counsel), for defendants-appellees Northern Lines, Inc., Farr Mann & Co., Inc. and Philippine Sugar Trading Corp., Subsidiary of Nat. Sugar Trading Ass'n.
Thomas L. Rohrer, New York City (George M. Leing, Healy & Baillie, New York City, of counsel), for defendants-appellees Amstar Corp. and American Sugar Refining Co. of New York, Inc.
Before OAKES, VAN GRAAFEILAND, Circuit Judges, and TENNEY, Senior District Judge. *
The JSP Agency appeals from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, granting summary judgment in favor of the defendants. 1 This appeal requires us to determine two issues--first, whether non-consenting, non-signatory parties may be bound by the terms of an agreement, merely because that agreement has been approved by the Federal Maritime Commission ("FMC") under Section 15 of the Shipping Act, 46 U.S.C. Sec. 814 (1982) ("Sec. 814"), 2 and second, whether the For the reasons stated below, we answer both questions in the negative, and affirm the decision of the district court.
agreement in question was adopted by one of the appellees as a result of the conduct, long-term practice, or cooperation of that appellee.
The undisputed facts establish that the following events occurred. In 1977, after two months of striking, the International Longshoremen's Association ("ILA") entered into a labor agreement--the Job Security Program Agreement, also known as the JSP Agreement ("Agreement")--with a group of approximately 200 carriers. The Agreement provided that the signatory carriers would pay a tonnage assessment on cargo loaded or unloaded by ILA labor in specified ports. It was agreed that the assessments would be placed in a central fund and would be used to guarantee certain benefits for ILA members. The Agreement was approved by the FMC pursuant to Sec. 814. The JSP Agency, the plaintiff-appellant in this action, was established to administer the fund created by the Agreement.
Subsequent to the signing of the Agreement, a separate document, known as the Master Contract, was signed by the ILA and the New York Shipping Association ("NYSA"). 3 NYSA is a multi-employer bargaining unit representing management. Its members include carriers, stevedores, terminal operators and other groups generally employing ILA labor in handling cargo. The Master Contract, which ultimately ended the strike, was negotiated and signed independently of the JSP Agreement. The district court found that the JSP Agreement had been appended to the Master Contract, but had not been absorbed by or incorporated as part of the Master Contract.
Because the JSP Agency had difficulty collecting assessments from the signatory carriers, the Agreement was amended in 1982 ("Amendment"). The Amendment was signed by the ILA, on behalf of its members, and by the JSP Agency on behalf of the carriers that had previously signed the Agreement.
The 1982 Amendment is the basis of the case at bar. It mandates that all carriers using ILA labor must subscribe to the JSP Agreement and that New York terminal operators and stevedores must obtain subscription agreements from the carriers with whom they deal. The Amendment also provides that the terminal operators and stevedores are jointly liable for tonnage assessments due on cargo if they provide services to a carrier and fail to obtain the carrier's subscription. The Amendment states in relevant part:
Every stevedore and terminal operator employing ILA labor subject to the JSP Agreement shall first procure a Subscription Agreement from the Carrier requesting * * *
the services of ILA labor in the loading or unloading of its vessel(s).
* * *
Stevedores and terminal operators who fail to get such Subscription Agreement from Carriers utilizing ILA labor in the ports subject to the JSP Agreement shall be jointly liable with the non-subscribing Carrier for the amount of any unpaid JSP Tonnage Assessment. Such Subscription Agreement shall not be necessary where the Carrier has directly subscribed to the Master [Contract] and the JSP Agreement.
The Amendment was also submitted to the FMC and was approved pursuant to Sec. 814.
Based on the 1982 Amendment, the JSP Agency brought this action against the defendants-appellees to collect tonnage assessments on bulk raw sugar that was purchased by the appellee Amstar Corporation and was unloaded by the appellee American Sugar Refining Company of New York, Inc. ("American Sugar"), a stevedoring company. 4 The sugar was transported to the United States on vessels that were owned, chartered or operated by the other appellees in this case. 5 None of the appellees was a signatory to the JSP Agreement, nor did any submit subscription agreements.
The appellant contends on appeal, as it did below, that because the FMC approved the JSP Agreement and its Amendment, the appellees are jointly liable for unpaid tonnage assessments. The appellant also argues that American Sugar--as a member of NYSA--is liable because the JSP Agreement was absorbed by the Master Contract which was signed by NYSA or, alternatively, because NYSA adopted the JSP Agreement and its Amendment.
On cross-motions for summary judgment, the district court rejected these arguments and granted summary judgment in favor of the appellees.
A motion for summary judgment may be granted only if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see generally 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice p 56.15[1.-0] (2d ed. 1983). The party moving for summary judgment must show that there are no material facts in dispute. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444 (2d Cir.1980). Summary judgment, however, will not be denied merely because of conclusory allegations or denials made by the opposing party. See Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir.1983) (citing cases). Concrete particulars must be set forth in opposition to the motion. See SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978). We conclude that there are no genuine issues of material fact, and that the defendants were entitled to judgment as a matter of law.
Section 814 provides that agreements which receive FMC approval are "lawful." The appellant argues that because an approved agreement is lawful, it has the "force of law," and therefore all parties affected by the terms of that agreement are bound by those terms, as a matter of law. Applying this rationale, the appellant contends that FMC approval of the JSP Agreement and its Amendment made them Section 814 permits common carriers to enter into certain agreements, such as tonnage assessment agreements, despite the fact that the agreements may be anticompetitive in nature. Absent this statute, such agreements could be challenged as being unlawful under the antitrust laws. "An agreement filed with and approved by the Commission is immunized from challenge under the antitrust laws." Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 271, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968).
binding on the appellees in this case as a matter of law. The district court rejected this argument and held that FMC approval "does no more than provide antitrust immunity." 6 We agree with the lower court
A careful reading of Sec. 814 makes it clear that the statute's sole purpose is to provide antitrust immunity to certain maritime agreements. This is apparent from the type of agreement that must be filed, the kind of responsibility given to the FMC by the statute, and the particular result of FMC approval set forth in Sec. 814. Nothing in the statute itself supports the appellant's argument that Sec. 814 provides a method of imposing contractual obligations on non-consenting parties.
Under Sec. 814, common carriers must obtain FMC approval of agreements "fixing or regulating transportation rates or fares; ... [giving] special privileges or advantages; controlling, regulating, preventing, or destroying competition; ... or in any manner providing for an exclusive, preferential, or cooperative working arrangement." Thus it can be seen that this statute does not apply to agreements in general, but...
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