Trans-Orient Marine Corp. v. Star Trading & Marine, Inc.
| Decision Date | 06 February 1991 |
| Docket Number | D,No. 457,TRANS-ORIENT,457 |
| Citation | 925 F.2d 566 |
| Parties | MARINE CORPORATION, Plaintiff-Appellant, v. STAR TRADING & MARINE, INC., and The Republic of the Sudan, Defendants-Appellees. ocket 90-7567. |
| Court | U.S. Court of Appeals — Second Circuit |
Nicholas Kalfa (LeRoy S. Corsa, Walker & Corsa, New York City, of counsel), for plaintiff-appellant.
Sally Ann Hostetler (Dexter S. Odin, Edward W. Cameron, Odin, Feldman & Pittleman, P.C., Fairfax, Va., of counsel), for defendants-appellees.
Norris D. Wolff (Kleinberg, Kaplan, Wolff & Cohen, P.C., New York City), for defendants-appellees.
Before OAKES, Chief Judge, PIERCE, and WINTER, Circuit Judges.
Plaintiff Trans-Orient Marine Corporation ("Trans-Orient") appeals from judgments entered in the United States District Court for the Southern District of New York (Conner, Judge) dismissing its action against defendant Star Trading & Marine, Inc. ("Star") at the conclusion of plaintiff's case and granting summary judgment in favor of defendant The Republic of the Sudan ("the Sudan"). On appeal, Trans-Orient argues that the district court 1) based its decision to dismiss the action against Star on clearly erroneous factual findings and 2) improperly granted summary judgment in favor of the Sudan.
For the reasons that follow, we reverse the dismissal of Trans-Orient's action against Star and remand for further proceedings against that defendant, and we affirm the lower court's grant of summary judgment in favor of the Sudan.
Trans-Orient is a New York corporation that provided shipping agency services for the Sudan in connection with United States government relief programs. The program involved here, known as the P.L. 480 program, was enacted as Title I of the Agricultural Trade Development and Assistance Act of 1954, 7 U.S.C. Secs. 1701-1715 (1988). P.L. 480 permits developing nations to purchase surplus United States agricultural products and often involves the use of transportation agents representing the recipient country. According to Trans-Orient, it has been the Sudan's exclusive shipping agent since 1961, during which time Trans-Orient arranged the transportation of surplus wheat, wheat flour and other commodities under the P.L. 480 program. Since January 1985, however, Trans-Orient has not represented the Sudan on P.L. 480 wheat and wheat flour shipments because of an alleged breach by the Sudan of a five-year agency contract it entered into with Trans-Orient in 1983.
The 1983 contract is a single-page letter agreement dated October 14, 1983 and headed "Extension of Agency Contract." The agreement was signed by Alisan Dobra, President of Trans-Orient, and Mamoun O. Medani, Economic Counsellor for the Embassy of the Democratic Republic of the Sudan ("Sudanese Embassy"). In the letter, Medani states that "I am pleased to confirm that we have extended the validity of your Agency contract for another five years to start October 1, 1984."
On January 3 and 4, 1985, however, Medani informed Trans-Orient in two letters that the Sudan was not bound by the October 14, 1983 contract because a Sudanese private company, Cereals Investment and Development Co., Ltd. ("CIDCO"), had assumed the Sudan's role in handling P.L. 480 wheat and wheat flour shipments, and that CIDCO would appoint its own shipping agent. Alisan Dobra complained to Sudanese Embassy officials, asserting that under the October 1983 contract, Trans-Orient's agency extended to all P.L. 480 commodities purchased by the Sudan and that any unilateral termination required one year's written notice. Notwithstanding Dobra's protestations, the Sudan adhered to its position that it was no longer bound by the October 1983 agency contract.
On January 10, 1985, CIDCO proceeded to appoint Star as its shipping agent. On the same day, despite Trans-Orient's claim that it was entitled to continue as the exclusive shipping agent for all P.L. 480 commodities Finally, also on January 10, 1985, Trans-Orient and Star entered into a contract. Their one-sentence agreement reads:
Trans-Orient entered into a one-year sub-agency agreement with CIDCO covering the same P.L. 480 wheat and wheat flour shipments. These two agreements with CIDCO resulted in a reversal of the roles previously held by Trans-Orient and Star. Prior to 1985, Star had served as Trans-Orient's sub-agent and received one-third of the shipping agent's brokerage commissions; Trans-Orient, as agent, had received the other two-thirds. Under the new relationship created by the January 1985 agreements, Trans-Orient became the sub-agent and was entitled to receive only one-third of the commissions, to be paid over to Trans-Orient by Star.
As we are, this afternoon, signing each a separate agreement, with CEREAL[S] INVESTMENT & DEVELOPMENT CO., LTD. (CIDCO) of Sudan, Star Trading & Marine, Inc. as its agent, and Trans-Orient Marine Corp. as its sub-agent, both appointed today, we agree and guarantee to each other that we are in the future [sic] renew our contracts only together and in agreement with each other.
Shortly after the January 10, 1985 agreements were executed, Trans-Orient complained to the United States Department of Agriculture ("USDA") about what it believed were improprieties or illegalities being committed by CIDCO and Star. In addition, Trans-Orient filed suit in the United States District Court for the District of Columbia against Star alleging, inter alia, that Dobra had been coerced into signing the January 10, 1985 agreements. During 1985, despite its consistent adversarial posture towards Star and CIDCO, Trans-Orient received and cashed checks from Star representing one-third of the commissions on the P.L. 480 shipments to the Sudan. Trans-Orient performed no services in exchange for these commissions.
When the time came to renew Trans-Orient's contract in January 1986, CIDCO conditioned renewal on the withdrawal of Trans-Orient's complaints with the USDA. Dobra refused this offer. Since no other offer was made in 1986, no renewal agreement was reached and Trans-Orient collected no commissions during 1986. The next year, in 1987, as the district court found, "Sudanese officials, apparently believing that the complaint filed with the USDA by Trans-Orient had gone beyond the point of recall, offered to continue Trans-Orient's appointment as [CIDCO's] subagent." This offer was subject to a new contract being signed between Trans-Orient and the Sudan and, as is discussed hereinbelow, also subject to mutually agreeable "details." Although Dobra agreed to this offer, he claims no agreement was consummated because the Sudanese government official failed to respond to Trans-Orient's proffered details. Star, however, did enter into new contracts with CIDCO in 1986 and each year subsequently but never sought Trans-Orient's agreement to these arrangements. Trans-Orient received no other offers to renew its January 1985 contract with CIDCO and, consequently, received no commissions on P.L. 480 wheat and wheat flour shipments for 1987, 1988, and 1989.
Trans-Orient brought this diversity action against Star and the Sudan on July 28, 1986. In its amended complaint, Trans-Orient alleged that Star "acted and continues to act as CIDCO's agent and [to] collect full brokerage commissions in breach of the January 10, 1985 [Star/Trans-Orient] agreement." Against the Sudan, Trans-Orient alleged a breach of the October 14, 1983 five-year agency agreement. The amended complaint sought damages of $600,000 against each defendant.
On the day of trial, the Sudan claimed that it could not be liable on the October 14, 1983 contract, since it was entered into by a prior Sudanese government. In order to allow the parties to brief this newly-raised issue, Judge Conner adjourned the action against the Sudan and allowed the claim against Star to proceed. A two-day bench trial was then held relating only to the claim against Star, at which Dobra was the only witness to testify. At the conclusion of plaintiff's case the court granted Two weeks after Trans-Orient's action against Star was dismissed, the Sudan moved for summary judgment on several grounds. Judge Conner denied the motion on the first asserted ground, finding that the present Sudanese government could be held liable for the contractual obligations of the predecessor government. Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 731 F.Supp. 619 (S.D.N.Y.1990). After the parties then briefed the remaining issues, the district court issued another opinion. This time Judge Conner granted summary judgment for the Sudan. Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 736 F.Supp. 1281 (S.D.N.Y.1990).
Star's motion to dismiss under Rule 41(b) of the Federal Rules of Civil Procedure. In an oral ruling, the court found that "Trans-Orient was unwilling to participate in a renewal of [the] arrangements" in its contract with CIDCO, and therefore, "there was no breach of the January 10, 1985 agreement between Trans-Orient and Star when Star proceeded independently of Trans-Orient to make a contract with CIDCO." Moreover, the court held, any damages were caused by Trans-Orient itself "by declining the offer to renew [the Trans-Orient/CIDCO] agreement." Therefore, since Trans-Orient had proven neither breach nor proximate causation, the court dismissed the suit against Star
After considering and rejecting several defenses, the district court arrived at "the more complicated issue of whether CIDCO's contract with Trans-Orient released the obligations of the Sudan, which thus became a third party beneficiary of that contract." Id. at 1284. Judge Conner noted that, in the trial against Star, he had ruled that it was " 'apparently understood that Trans-Orient would perform no services in connection with the shipments, and that Trans-Orient was receiving one third of the commissions paid, in consideration for its...
To continue reading
Request your trial
-
Piccoli a/S v. Calvin Klein Jeanswear Co.
...Ocean, 66 N.Y.2d at 45, 495 N.Y.S.2d at 5, 485 N.E.2d 208; Newman & Schwartz, 102 F.3d at 663; with Trans-Orient Marine v. Star Trading & Marine, 925 F.2d 566, 573 (2d Cir.1991); Cutler v. Hartford Life Ins. Co., 22 N.Y.2d 245, 253, 292 N.Y.S.2d 430, 438, 239 N.E.2d 361 Reliance upon a cont......
-
In re Houbigant, Inc.
...obligation to perform to the third party beneficiary need not be expressly stated in the contract." Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 573 (2d Cir.1991); see also Cauff, Lippman & Co. v. Apogee Fin. Group, Inc., 807 F.Supp. 1007, 1020 (S.D.N.Y.1992) (sta......
-
Granite Partners, L.P. v. Bear, Stearns & Co., 96 Civ. 7874(RWS).
...Inc. v. The Wharf (Holdings) Ltd., 988 F.Supp. 367, 371 (S.D.N.Y. 1997) (citations omitted); see Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 573 (2d Cir.1991); Septembertide Publ'g, B.V. v. Stein & Day, Inc., 884 F.2d 675, 679 (2d While the Complaint does not spe......
-
Blake v. Race, 01-CV-6954 (JFB)(CLP).
...complaint. Id. at 555 (quoting Jeffreys v. Rossi, 275 F.Supp.2d 463, 475 (S.D.N.Y.2003)); see also Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir.1991) (holding that the post-trial sworn statements of the president of plaintiff corporation did not create......
-
Project update 1995: illustrative provisions of a general indemnity agreement taken in connection with contract surety bonds.
...See also King v. Employers Nat'l Ins. Co., 928 F.2d 1438 (5th Cir. 1991); Trans-Orient Marine Corp. v. Star Trading & Marine Inc., 925 F.2d 566 (2d Cir. 1991); Sepulveda v. Pacific Maritime Ass'n, 878 F.2d 1137 (9th Cir.), cert. denied, 493 U.S. 1002 (1989); Central States, Southeast an......