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May 2, 1978

STAR LINES LTD., Plaintiff,

The opinion of the court was delivered by: CARTER


 Star Lines, Ltd. ("Star Lines") commenced this action against Puerto Rico Maritime Shipping Authority ("PRMSA") and Pacific Far East Lines ("PFEL"), alleging, insofar as is relevant to the instant motion, that the defendants violated §§ 1 and 2 of the Sherman Act (15 U.S.C. §§ 1, 2). *fn1" Star Lines seeks to recover treble damages under § 4 of the Clayton Act (15 U.S.C. § 15). PRMSA now moves for summary judgment *fn2" on the grounds that (1) plaintiff lacks standing to raise the issue of PRMSA's antitrust violations; and (2) PRMSA's status as a governmental entity acting pursuant to the specific authority granted it by the Puerto Rico Legislature immunizes it from liability under the antitrust laws. For the reasons set out below, defendant's motion is denied.


 The facts underlying the present dispute were set out in an earlier opinion of this court, denying PRMSA's motion to transfer pursuant to 28 U.S.C. §§ 1404, 1406, Star Lines, Ltd. v. Puerto Rico Maritime Shipping Authority, 442 F. Supp. 1201 (S.D.N.Y. 1978), and familiarity is assumed. Accordingly, only those facts which are necessary for purposes of determining the instant motion will be set forth.

 "PRMSA is both a public agency and a non-stock profit making corporation created, owned, and controlled by the Commonwealth of Puerto Rico." *fn3" PRMSA's purpose and powers are "'to own and regulate all aspects of commercial freight shipping in and out of the island from the Eastern and Gulf ports of the mainland as a public service.'" *fn4" In order to carry out its designated function, "PRMSA acquired control over privately owned marine transportation facilities in Puerto Rico and some twelve cargo ships." *fn5" One of these ships, the S.S. Puerto Rico, constitutes an essential element of the dispute underlying this action.

 The S.S. Puerto Rico is a modern "roll-on roll-off" vessel in which the cargo is transported by means of trailers which are driven on and off the ship. On May 18, 1976, PRMSA entered into an agency contract with Star Lines with respect to the S.S. Puerto Rico. "Under the terms of the contract, Star Lines was to be the agent of PRMSA for purposes of servicing and booking cargo for the S.S. Puerto Rico on its East Coast-Persian Gulf runs." *fn6" The S.S. Puerto Rico was thereafter used exclusively in the East Coast-Persian Gulf service.

 The events which led to the present lawsuit were summarized in our earlier opinion:

"Early in 1977, the agency agreement broke down. On January 4, Star Lines apparently tried to assign its right under the agreement to Pacific Far East Lines ("PFEL"), co-defendant in this action, subject to the approval of PRMSA; but PRMSA did not approve. Instead, on February 15, it gave notice of termination of the agreement to Star Lines and, two days later, gave Star Lines a first refusal offer to subcharter the S.S. Puerto Rico. The next day, Star Lines rejected the subcharter offer on the proffered terms, and also expressed its disagreement with PRMSA as to what date the termination would become effective. At about this time, PRMSA chartered the S.S. Puerto Rico to PFEL, purportedly on the same terms it offered to Star Lines on February 17." *fn7"

 Allegations of the Amended Complaint

 Star Lines alleges in its amended complaint that PFEL operated the only two roll-on roll-off vessels in the East Coast-Persian Gulf trade other than the S.S. Puerto Rico, and that it was PFEL's "only competitor in the service" of these vessels. *fn8" Star Lines alleges further that PRMSA and PFEL combined and conspired to enter into a contract that would have the effect of "eliminat[ing] Star Lines as a competitor" in the service of these vessels in the East Coast-Persian Gulf trade. *fn9" This alleged anticompetitive conduct by defendant PRMSA included, but was not limited to, PRMSA unlawfully terminating Star Lines as its agent and unlawfully breaching its covenant not to provide service, directly or indirectly, between the East Coast and the Persian Gulf other than through Star Lines for a specified time period. *fn10" Count 1 alleges that the defendants' conduct constituted a contract, combination and conspiracy in restraint of trade in violation of § 1 of the Sherman Act. *fn11" Count 2 charges that their conduct constituted an attempt to secure a monopoly for PFEL in the roll-on roll-off cargo service between the East Coast and Persian Gulf in violation of § 2 of the Sherman Act. *fn12"


 Section 4 of the Clayton Act provides that treble damages may be awarded to "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws." 15 U.S.C. § 15. The courts, in interpreting this section, have limited those categories of persons who may avail themselves of this remedy. See, e.g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 50 L. Ed. 2d 701, 97 S. Ct. 690 (1976); Hawaii v. Standard Oil Co., 405 U.S. 251, 262-63, 31 L. Ed. 2d 184, 92 S. Ct. 885 n.14 (1972); Long Island Lighting Co. v. Standard Oil Co. of Calif., 521 F.2d 1269 (2d Cir. 1975); Sherman, Antitrust Standing: From Loeb to Malamud, 51 N.Y.U.L. Rev. 374 (1976). The prospective plaintiff must have suffered " antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful." Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, 429 U.S. at 489; see GAF Corp. v. Circle Floor Co., 463 F.2d 752 (2d Cir. 1972). In addition, the plaintiff must show that he is a person "within the 'target area' of the alleged antitrust conspiracy, i.e., a person against whom the conspiracy was aimed . . . ." Calderone Enterprises Corp. v. United Artists Theatre Circuit, 454 F.2d 1292, 1295 (2d Cir. 1971), cert. denied, 406 U.S. 930, 32 L. Ed. 2d 132, 92 S. Ct. 1776 (1972); see Billy Baxter, Inc. v. Coca-Cola Co., 431 F.2d 183 (2d Cir. 1970), cert. denied, 401 U.S. 923, 27 L. Ed. 2d 826, 91 S. Ct. 877 (1971).

 The standing controversy here focuses upon Star Line's relationship to the East Coast-Persian Gulf, roll-on roll-off, carrier service. Star Lines contends that although PRMSA was the carrier in the trade, it was Star Lines who "operated" the shipping line and who supplied the contacts and expertise which were the critical factors enabling the S.S. Puerto Rico to compete effectively with PFEL's vessels in the trade. Star Lines contends that it suffered antitrust injury by virtue of PRMSA's conduct in that it was temporarily precluded from participating in the trade for lack of a vessel, and that upon obtaining a vessel, *fn13" it was unable to vie successfully with PFEL for a portion of the market because of PFEL's overwhelming presence in the East Coast-Persian Gulf trade as a result of its acquisition of the S.S. Puerto Rico. Star Lines argues further that as PFEL's "competitor" it was in the center of the target area at which the challenged conduct was aimed. Thus, it is Star Lines' position that it has clearly met the requirements for standing to sue under the antitrust laws.

 PRMSA, on the other hand, argues that Star Lines' self-serving characterization of itself as a "competitor" in the East Coast-Persian Gulf trade is without foundation. It was PRMSA who was the carrier in the East Coast-Persian Gulf trade, and as such it was PRMSA who vied with PFEL -- not Star Lines. PRMSA filed the requisite governing tariff with the Federal Maritime Commission for the vessel; PRMSA paid the crew; and PRMSA assumed the risk for any damaged cargo. *fn14" PRMSA maintains that since Star Lines did not compete in the industry, it could not have suffered antitrust injury to its competitive position; rather, the injury suffered by Star Lines was the simple, commercial injury it incurred because of the termination of its agency contract. PRMSA argues further that Star Lines lacks standing because it is not in the target area of PRMSA's alleged improper conduct. Rather, its status as PRMSA's agent places Star Lines in the same category as the franchisor *fn15" ...

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