New England Fish Co., In re

Decision Date26 December 1984
Docket NumberNo. 83-4294,83-4294
PartiesIn re NEW ENGLAND FISH COMPANY, a Maine corporation, also known as NEFCO, Debtor. Sam RUBENSTEIN, Trustee of New England Fish Company, a Maine corporation, also known as NEFCO, Plaintiff-Appellant, v. BALL BROS., INC., an Alaska corporation, Defendant, and Seafood Processing Company, a Washington corporation, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Page 1277

749 F.2d 1277
In re NEW ENGLAND FISH COMPANY, a Maine corporation, also
known as NEFCO, Debtor.
Sam RUBENSTEIN, Trustee of New England Fish Company, a Maine
corporation, also known as NEFCO, Plaintiff-Appellant,
v.
BALL BROS., INC., an Alaska corporation, Defendant,
and
Seafood Processing Company, a Washington corporation, et
al., Defendants-Appellees.
No. 83-4294.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted July 3, 1984.
Decided Oct. 19, 1984.
As Amended Dec. 26, 1984.

Page 1279

Ronald T. Schaps, Bogle & Gates, Seattle, Wash., for Rubenstein.

Charles C. Gordon, Perkins, Coie, Stone, Olsen, & Williams, Matthew R. Kenney, Lane, Powell, Moss & Miller, Michael F. Rodin, Preston, Thorgrimson, Ellis, & Holman, James A. Grutz, Goodwin, Grutz & Scott, Seattle, Wash., Wayne Anthony Ross, Anchorage, Alaska, for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before SKOPIL and NELSON, Circuit Judges, and COYLE, * District Judge.

NELSON, Circuit Judge.

Rubenstein, bankruptcy trustee for the New England Fish Co., appeals the district court's grant of summary judgment dismissing his negligence, third party beneficiary contract, equitable subrogation, and equitable indemnity claims against appellees. Rubenstein's claims arose from the appellees' alleged negligent processing of fish sold by the New England Fish Co. to a Japanese corporation.

We affirm the district court's summary judgment dismissing the negligence, third party beneficiary contract, equitable subrogation, and equitable indemnity claims.

FACTS AND PROCEDURAL HISTORY

The New England Fish Company (NEFCO), a Maine corporation with its principal place of business in Washington, was in the business of acquiring and selling seafood. On April 9, 1979, NEFCO entered into an agreement with Okaya, Inc., a Japanese corporation, to sell Okaya an estimated 4,550,000 pounds of frozen salmon.

Ball Bros., Inc., an Alaska corporation, was in the business of purchasing salmon caught in Bristol Bay, Alaska, and transporting it for sale in Anchorage, Alaska and Seattle, Washington. On April 26, 1979, NEFCO and Ball Bros. entered into a marketing agreement by which Ball Bros. granted NEFCO the exclusive right to "market as agent" for Ball Bros. fish acquired by Ball Bros. from Bristol Bay. NEFCO agreed to use its best efforts to maximize the quantity of fish delivered.

Under the agreement, Ball Bros. undertook to: (1) pay in advance all expenses of acquiring, preparing, storing, and delivering the fish; (2) deliver the fish to NEFCO free and clear of all liens, claims, encumbrances and security interests; (3) pay NEFCO, as marketing agent, a brokerage commission of 5% of the gross sales realized by NEFCO; (4) pay NEFCO's costs incurred in selling the fish to a buyer; (5) hold title to the fish until it was sold; (6) bear the risk of loss until the fish was sold to and accepted by NEFCO's buyer; (7) meet various specifications and standards originally established in the NEFCO-Okaya agreement; and (8) accept all responsibility for product defects before sale to and acceptance by NEFCO's buyer.

Appellees Transfresh, Cook Inlet, Seapro and Seapro-Alaska are custom fish processors who charge for processing and freezing fish at a specified rate per pound. Appellee Seafreeze is a cold storage company. Before the 1979 fishing season, Transfresh orally agreed to provide processing services for fish to be acquired by Ball

Page 1280

Bros. On Approximately April 1, 1979, Cook Inlet agreed to custom process fish for Ball Bros. On approximately February...

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