Banco Do Brasil, S.A. v. Calhoon

• Decision Date: 31 March 1966
• Docket Number: AFL-CIO
• Citation: 50 Misc.2d 512,270 N.Y.S.2d 691
• Parties: BANCO DO BRASIL, S.A. and Navagacao Savonia, S.A., Plaintiffs, v. Jesse M. CALHOON, as President of National Marine Engineers Beneficial Association,, and Jesse M. Calhoon, individually, Defendants.
• Court: New York Supreme Court

Page 691

270 N.Y.S.2d 691

50 Misc.2d 512

BANCO DO BRASIL, S.A. and Navagacao Savonia, S.A., Plaintiffs, v. Jesse M. CALHOON, as President of National Marine Engineers Beneficial Association, AFL-CIO, and Jesse M Calhoon, individually, Defendants.

Supreme Court, Special Term, New York County, Part I.

March 31, 1966.

Pressman & Scribner, New York City (Joan Stern Kiok, New York City, of counsel), for defendants.

Frank E. Nattier, New York City (Richard L. Newman, Steven L. Werner, New York City, of counsel), for plaintiffs.

BIRDIE AMSTERDAM, Justice.

Defendants move to dismiss the complaint herein on the grounds of legal insufficiency; that the court does not have jurisdiction of the subject matter; and that the action is time barred.

The complaint alleges, in substance, that plaintiffs time-chartered a vessel from the owner of the vessel, Alcoa International, Inc. (hereinafter 'Alcoa'); that between June 22, 1961 and July 12, 1961, defendants engaged in activities in Port Arthur, Texas, which were designed to prevent the loading of the chartered vessel by causing the said vessel to be picketed; that the picketing was secondary picketing and constituted a secondary boycott in that there was no dispute between either the owner of the vessel or the plaintiffs, who were the charterers. On the contrary, it is alleged that the dispute was with a corporation related to the owner of the vessel. As a result of the secondary picketing, it is alleged that the vessel was detained in Port Arthur, Texas, the site of the picketing, and the owner of the vessel has a proceeding in arbitration seeking to require the plaintiffs to pay for the detention of the vessel, claiming that the detention was for the charterer's account under the chartering agreement. The plaintiff-charterers have resisted the claim of the owner on the ground that the picketing was against a corporation related to the owner and therefore for the owner's account. The said issue is presently in arbitration, in accordance with the chartering agreement. The complaint further alleges that, in the event the charterers are held liable, the damages which they will sustain will have resulted from the wrongful acts of defendants, who should therefore be held liable for such amounts as may be awarded in such arbitration.

Defendants contend that the complaint states no cause of action, since the liability alleged is contingent. However, CPLR 3014 permits hypothetical pleadings; such pleadings are subject to the requirement of honesty and good faith (Weinstein, Korn & Miller, 3 N.Y.Civil Practice, § 3014.12, p. 30--183). A case in point is W. T. Grant Co. v. Uneeda Doll Company, Inc., 19 A.D.2d 361, 243 N.Y.S.2d 428, First Dept., affd. 15 N.Y.2d 571, 254 N.Y.S.2d 834, 203 N.E.2d 299). There the court upheld a hypothetical complaint in an action for indemnity by a retailer against a manufacturer in the amount of recovery that might be secured against the retailer if a consumer was successful in an action against the retailer in another state upon a showing of honesty and good faith.

The facts alleged in the instant complaint indicate the bona fides and honesty of plaintiffs, who do not yet know at this stage whether those facts will result in liability to the owner of the vessel when the arbitration described in the complaint is concluded. In fact, the pending arbitration of the controversy as to plaintiffs' primary liability to said owner precludes any possibility of prosecuting a third-party action or impleading the present defendants in the primary proceeding instituted by said owner. Consequently, the plaintiffs now face the necessity of proceeding on a hypothetically pleaded complaint as their sole remedy. In such circumstances, the interests of substantial justice plainly require, and have often been said to justify, not only hypothetical pleading but even a premature indemnification action (3 Weinstein, Korn & Miller, p. 30--185). On this score, the complaint is legally sufficient.

Defendants further contend that this court has no jurisdiction of the subject matter, since plaintiffs' exclusive remedy, if any, is an action under subdivision (b) of section 303 of the Labor Management Relations Act, Title 29 U.S.C.A. § 187(b) (hereinafter L.M.R.A.). Section 187 reads:

'(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b)(4) of this title.

'(b) Whoever shall be injured in his business or property by reason of any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the costs of the suit.'

Section 8(b)(4) of the L.M.R.A. (U.S.Code, tit. 29, § 158, subd. (b), par. (4)) holds that it shall be an unfair labor practice for a labor organization or its agents:

'(b)(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is * * *

'(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person * * *'.

Plaintiffs herein and, it is claimed by them, the owner of the vessel are foreign corporations, and as such Section 303(b) supra, L.M.R.A., is not available to either of them. This section is not applicable to a suit alleging damages by a foreign ship operated entirely by alien seamen, for losses resulting from picketing (Navios Corporation v. National Maritime Union of America, D.C., 236 F.Supp. 657). On this point it has been held that Congress intended the L.M.R.A. to provide a statutory remedy for American concerns and American unions only, in their labor disputes (Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709; see also Incres Steamship Co., Ltd. v. International Maritime Workers Union, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557). Though plaintiffs allege in the complaint they are foreign corporations, there in no allegation that the owner of the vessel (Alcoa International Inc.) is also a foreign corporation. Plaintiffs refer to such fact in their memorandum and that the seamen aboard the vessel were foreign seamen. As requested in their brief, plaintiffs may amend the complaint to assert such facts.

As to the branch of the motion to dismiss the complaint as time barred, it appears that the action arises under a Texas statute (Article 5154f of Vernon's Ann.Revised Civil Statutes) making it unlawful for any person or labor union to call, participate in, aid or abet a secondary strike or secondary picketing, or a secondary boycott. The action was commenced on June 14, 1965, a period of more than three...