Perry v. INTERNATIONAL TRANSPORT WORKERS'FED.
| Decision Date | 12 September 1990 |
| Docket Number | No. 83 Civ. 2059 (CES).,83 Civ. 2059 (CES). |
| Citation | 750 F. Supp. 1189 |
| Parties | William PERRY, as President of Local 6, International Longshoremen's Association, A.F.L.-C.I.O., An Unincorporated Association, et al., Plaintiffs, v. INTERNATIONAL TRANSPORT WORKERS' FEDERATION, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Laufer & Farkash, by Jacob Laufer, New York City, for Perry.
Poles, Tublin, Patestides & Stratakis, by William J. Brady, III, New York City, for Int'l Shipping.
Phillips Cappiello Kalban, Hofmann & Katz, P.C., by Ned R. Phillips, New York City, for defendants.
This is an action brought by plaintiff William Perry ("Perry"), as President of Local 6 of the International Longshoremen's Association, AFL-CIO, an unincorporated association ("Local 6")1 and intervenor plaintiff International Shipping Association ("ISA")2 against the defendant International Transport Workers' Federation ("ITF").3 Both plaintiffs allege violation of the Clayton Act, 15 U.S.C. § 15 (hereinafter "Clayton Act"), by a group boycott and unlawful combination, resulting in restraint of trade in violation of the Sherman Anti-Trust Act, 15 U.S.C. §§ 1 and 2 (hereinafter "Sherman Act" or "Section 1" or "Section 2").
Both plaintiffs also allege a state law claim for intentional interference with contractual rights. In addition Local 6 alleges tortious interference with prospective contractual relations.4
Defendant ITF cross-claims, also alleging antitrust violations and tortious interference with contractual rights as well as unfair competition and a trademark violation under Section 43(a) of the Lanham Act (hereinafter "Section 43(a)" or "Section 1125(a)"). 15 U.S.C. § 1125(a).
Plaintiffs now move for partial summary judgment pursuant to Rule 56 of Fed.R. Civ.P. on the issue of liability on their claim of tortious interference with an existing contract and partial summary judgment dismissing defendant's requests for monetary damages in its counter claims against both plaintiffs. Local 6 also seeks partial summary judgment on its claim of tortious interference with prospective contractual relations.
Defendant International Transport Workers' Federation (the "ITF") cross moves for summary judgment under Fed. R.Civ.P. 56 as to all counts of the complaint of both plaintiffs.
For the reasons that follow, we grant summary judgment to defendant on the plaintiffs' antitrust claim and dismiss defendant's antitrust claim. We grant summary judgment to plaintiffs on defendant's counterclaim which alleges tortious interference with contract and pecuniary interest. We deny summary judgment with respect to all other claims.
This case concerns a dispute between plaintiff Local 6 and the ITF over the representation of crews on "flag of convenience" vessels. The term "flag of convenience" denotes a cost-cutting business practice used by shipowners. A flag of convenience ("FOC") vessel is effectively owned by interests in one nation but is registered in another. Its owners can then avoid the first nation's higher taxes and more stringent labor laws. Under international maritime law, registry not ownership determines the country to which a ship belongs.
Since the late 1940s ITF has attempted to become the worldwide representative for FOC crews, directing its affiliate unions to negotiate agreements with FOC vessel owners. In a number of ports around the world, ITF employs "inspectors" who board FOC vessels to check for a "blue certificate" which is given to ships whose owners sign ITF agreements. If a vessel does not carry a blue certificate, the inspector tries to persuade the captain to sign an ITF agreement. If the captain refuses, the inspector informs the captain that portside unions (usually ITF affiliates) will boycott or "black" the vessel until an ITF agreement is signed. For example, "blacking" could entail a refusal to handle the ship in any way, such as a refusal to supply tugboats or pilotage services or refusal by the dockers to load or unload the ship. See May 30, 1989 Defendant's Memorandum in Support of Motion for Summary Judgment, page 3 ("Deft's Memo for Summary Judgment").
Local 6 was initially chartered by the International Federation of Health Professionals and has primarily represented factory, health and restaurant workers located in the tri-state area (New York, New Jersey, Connecticut). See Deposition of William Perry, April 18, 1989, pp. 10-11. In 1972 Local 6 became affiliated with the International Longshoremen's Association ("ILA"). Id. at 13. That affiliation continued until 1984. Id.
In 1982 Local 6 began a drive to organize FOC seamen. During 1980-84 ISA's primary function was to negotiate collective bargaining agreements between labor unions and shipowners. See May 30, 1989 Plaintiffs' Memorandum of Law in Support of Motion for Partial Summary Judgment ("Pltf's Memo for Summary Judgment"), at 2. ISA acted through its New York agent, Venturas Ship Chartering, Ltd., represented by Evangelos Venturas.
In 1982 Perry and Venturas (on behalf of ISA's member shipowners) executed agreements with four shipowners. Among these four was an agreement with the owners of the ship Ocean Sky, signed on November 24, 1982.
On February 4, 1983, the Ocean Sky arrived in the port of Haifa, Israel to discharge cargo. During its stay in Haifa, an ITF inspector named Captain Groman ("Groman") boarded the Ocean Sky and sought to organize the crew by obtaining execution of the standard ITF collective bargaining agreement. When the vessel's owners refused to deal with ITF, citing their contract with Local 6, an Israeli pilots' union affiliated with ITF declined to furnish a pilot for the Ocean Sky's departure from Haifa, thereby effectively detaining the ship there. Plaintiff alleges that as of February 25, 1983, ITF was aware of and had approved the blacking of the Ocean Sky. See May 30, 1989 Plaintiff's Notice of Motion, ¶ 42.
Local 6 commenced this action in March 1983, by an order to show cause seeking a temporary restraining order directing ITF to release the Ocean Sky from detention in Haifa. This court issued the TRO on March 18, 1983, but by March 22 or March 23, 1983 the Ocean Sky had managed to leave Haifa without a pilot under cover of night.
In a Memorandum Decision dated November 7, 1986 this court denied plaintiff's motion for a preliminary injunction prohibiting ITF from engaging in an alleged worldwide boycott of FOC vessels operating under Local 6 labor contracts. We also found that we had in personam jurisdiction over defendants International Transport Workers' Federation, William Lindner, John Law and the Transport Workers' Union of America. See William Perry v. International Transport Workers' Feder- ation, No. 83 Civ. 2059 (S.D.N.Y. Nov. 7, 1986).
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment may be granted if a review of the materials before the court shows that no genuine issue of material fact remains for trial and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A summary judgment may be rendered on the issue of liability alone even though there is a genuine issue as to the amount of damages. Id. All reasonable inferences and any ambiguities are drawn in favor of the nonmoving party. See David Thompson v. Davor Gjivoje, 896 F.2d 716, 720 (2d Cir.1990); Katz v. Goodyear Tire and Rubber Co., 737 F.2d 238, 244 (2d Cir.1984). The movant has the initial burden of establishing that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Summary judgment is an extreme remedy that should not be granted unless the moving party has established a right to judgment with such clarity as to leave no room for doubt and unless the nonmoving party is not entitled to recover under any discernible circumstances.
In antitrust cases, summary judgment should be granted sparingly, "especially where an allegation of conspiracy raises issues of fact as to motive and intent." See Burlington Coat Factory Warehouse v. Belk Bros., 621 F.Supp. 224, 231 (S.D.N.Y.1985). Summary judgment is also inappropriate where the resisting party "comes forth with affidavits or other material ... that generates uncertainty as to the true state of any material fact ..." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). Nevertheless, summary judgment is appropriate in some antitrust cases. See, e.g., First National Bank v. Cities Service Co., 391 U.S. 253, 274-88, 88 S.Ct. 1575, 1585-92, 20 L.Ed.2d 569 (1968). Where plaintiff fails to present significant probative evidence to demonstrate that a genuine issue of material fact exists, summary judgment is appropriate. See Western Systems, Inc. v. Dynatech Corp., 610 F.Supp. 585, 588 (D.Colo.1985).
Plaintiffs allege that ITF violated Sections 1 and 2 of the Sherman Anti-Trust Act, 15 U.S.C. §§ 1-2,5 in that the steps taken by ITF and its affiliates to enforce the ITF's "blacking" policy constitute an unlawful group boycott, combination and conspiracy in restraint of interstate and international trade. Second Amended Complaint at ¶ 22. Further, plaintiffs allege that the ITF and its co-conspirators try to force FOC vessels and/or their owners to sign an ITF agreement and make payments to the ITF welfare fund. Id. at ¶ 17.
Defendant ITF argues that plaintiffs' antitrust claim should be dismissed because the activities which plaintiffs contend violate the antitrust laws come within a statutory exemption accorded to labor activity. See Deft's Memo for Summary Judgment at 1. We agree.
The Sherman Act, which prohibits concerted action in restraint of "trade or commerce among the several states or with foreign nations ...," was enacted primarily "to protect consumers...
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