In re National Sugar Refining Co.
| Decision Date | 28 January 1983 |
| Docket Number | No. 82 CIV 5188 (LBS).,82 CIV 5188 (LBS). |
| Parties | In re The NATIONAL SUGAR REFINING COMPANY, Debtor. The NATIONAL SUGAR REFINING COMPANY, Appellant, v. C. CZARNIKOW, INC. and Bankers Trust Company, Appellees. |
| Court | U.S. District Court — Southern District of New York |
Finley, Kumble, Wagner, Heine, Underberg & Casey, Daniel A. Zimmerman, New York City, for appellant.
Zalkin, Rodin & Goodman, Andrew D. Gottfried, New York City, for C. Czarnikow, Inc.
Moses & Singer, Richard W. Brewster, New York City, for Banker Trust Co.
Appellant National Sugar Refining Company appeals from an order of United States Bankruptcy Court Judge Edward J. Ryan, dated September 21, 1981, and from an oral order of the same court, dated November 9, 1981. Briefly stated, the September 21st order determined that appellee, C. Czarnikow, Inc. ("Czarnikow"), an unpaid seller of raw sugar to appellant, was entitled to exercise its right of stoppage in transit upon appellant's insolvency. The order also stated that Czarnikow had the right to dispose of the sugar in a commercially reasonable manner and to retain the proceeds pending the bankruptcy court's determination as to whether Bankers Trust Company ("Bankers"), an alleged secured creditor of appellant, or Czarnikow had a superior right to such proceeds. The November 9th order denied appellant's motion pursuant to rule 923 of the Rules of Bankruptcy Procedure for reconsideration of the September 21st order. This Court's jurisdiction is founded on 28 U.S.C. § 1334.
Appellant purchased 6,550 long tons of raw sugar from Czarnikow pursuant to two contracts dated August 12, 1981 and August 26, 1981, both of which called for September delivery. On August 27, 1981, Czarnikow advised appellant that 6,550 tons of sugar then on board the vessel M/V Edispsos and for which Czarnikow held the negotiable bill of lading would be used to fulfill its obligations under the two contracts. At that point, title to the sugar passed from Czarnikow to appellant.
On September 3, 1981, appellant filed a Chapter 11 petition pursuant to the Bankruptcy Reform Act of 1978, 11 U.S.C. (the "Bankruptcy Code" or "Code") § 1101 et seq. in the United States Bankruptcy Court for the Southern District of New York.
On September 11, 1981, Czarnikow applied to the bankruptcy court and obtained on even date an order requiring appellant to show cause why it should not be required to assume or reject the two "executory" sugar contracts forthwith and, if the contracts were assumed, why appellant should not be required to provide Czarnikow with adequate assurance of payment. Czarnikow's application further stated that it was exercising its right of stoppage in transit pursuant to Uniform Commercial Code ("UCC") §§ 2-702(1), 2-705(1).
On the same date, Bankers applied to the bankruptcy court and obtained an order requiring appellant and Czarnikow to show cause why the sugar should not be sold on the open market and the proceeds paid into the court pending resolution of which party had superior rights to the proceeds. The court scheduled a hearing for September 16, 1981 on both Czarnikow's and Banker's applications.
Appellant's answer and counterclaim to the Czarnikow application, filed September 16, 1981, asserted that the contracts were nonexecutory; that Czarnikow had no right of stoppage in transit; that the sugar should immediately be delivered to appellant; and that Czarnikow was restrained by the automatic stay provisions of Code § 362 from interfering with delivery of the sugar.
Appellant also filed on September 16 an answer to the Czarnikow application setting forth several affirmative defenses and counterclaims against Bankers as well as crossclaims against Czarnikow whereby appellant asserted that its interests in the sugar were superior to those of both Czarnikow and Bankers. Appellant further alleged also that it could pursuant to Code § 361 provide adequate protection to Czarnikow as to payment for the sugar, in the form of substitute liens on appellant's unencumbered property.
The evidence presented to the bankruptcy court at the September 16th hearing was the testimony of appellant's president, relative to the four points which the court directed appellant to establish: the possibility of a successful reorganization of appellant; appellant's need for the sugar for its operations; the expense and inconvenience to appellant in obtaining replacement sugar; and the adequacy of the indemnity appellant proposed to give to Czarnikow and Bankers. The hearing was adjourned to September 18, 1981, by which time the parties filed memoranda of law. After asking the parties if they had fully presented their cases on the issue of Czarnikow's right of stoppage in transit, and receiving affirmative responses from Czarnikow and Bankers and no response from appellant, the court held that Czarnikow had the right to stop the sugar in transit and approved a stipulation previously entered into by Czarnikow and Bankers providing for the sale of the sugar and a subsequent determination of rights between the two as to the proceeds. Transcript of Hearings of September 18, 1981, at 110. A proposed order to effectuate the ruling of September 18 was submitted to and signed by the court on September 21, 1981, to which appellant objected on the grounds that the order should have allowed appellant the opportunity to litigate with Bankers and Czarnikow over the proceeds of the sugar. On November 9, 1981, the court by oral order denied appellant's motion to reconsider the September 21 order, and the instant appeal ensued.
Appellant and Czarnikow have submitted briefs, appeared before the Court for oral argument, and filed supplemental memoranda. Bankers has indicated by letter to the Court that it will not submit briefs on this appeal.
The central issue presented herein, one of apparent first impression, is whether Czarnikow's exercise of its right of stoppage in transit, under UCC § 2-702(1), subsequent to appellant's filing of a petition in bankruptcy constituted the creation of a "statutory lien" avoidable by the trustee or debtor-in-possession1 under Bankruptcy Code § 545 or resulted in the creation of interest in the sugar in favor of Czarnikow subordinate to the rights of appellant under Bankruptcy Code § 544(a) and UCC § 9-301.
The second issue raised by appellant is whether Czarnikow's post-petition exercise of its right of stoppage violated the automatic stay provisions of Code § 362(a) and was accordingly void.
Finally, appellant argues that the bankruptcy court erred in adversely determining appellant's rights to the sugar with no motion pending for summary judgment or to dismiss the pleadings and with no or insufficient evidence presented by Czarnikow establishing its entitlement to the sugar.
We consider each of these issues below.
Section 2-702(1) of the Uniform Commercial Code provides:
"Where the seller discovers the buyer to be insolvent he may refuse delivery except for cash including payment for all goods theretofore delivered under the contract, and stop delivery under this Article. . . . "
See also UCC § 2-705(1) ().
The right accorded a seller of goods pursuant to this provision is premised on the inequity of permitting the buyer to obtain possession of goods when there has been a prospective failure of the buyer's performance. When the buyer is insolvent and thus impaired in fulfilling its contractual obligation to pay, the seller rather than deliver the goods and seek to recover on the price, see UCC §§ 2-709(1), 2-607(1), may withhold or stop in transit the delivery of the goods—i.e., suspend his performance, see UCC § 2-705 Comment 1—until and unless he is assured of the buyer's payment in cash upon delivery, even though the contract may call for the extension of credit. See 3A R. Dusenberg & L. King, Sales & Bulk Transfers under the Uniform Commercial Code § 13.032, at 13-12 (1982).2 This right persists so long as the goods are in the hands of a carrier or any other bailee not holding for the buyer and is cut off by the buyer's attainment of actual or constructive possession. See UCC § 2-705(2).
The fact that Czarnikow had passed to appellant title to the sugar did not affect the former's right to stop in transit. As one commentator notes, 4A Collier on Bankruptcy ¶ 70.40, at 481 n. 2 (14th ed. 1978). See also UCC § 2-401; 78 C.J.S. Sales ¶ 403.
Appellant asserts, however, that Czarnikow's stoppage in transit constitutes a statutory lien avoidable under Code § 545.
Section 545 provides, in relevant part:
11 U.S.C. § 545(1)(D), (2).
Appellant maintains that the exercise of the...
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