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September 12, 1990


The opinion of the court was delivered by: Stewart, District Judge:


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")*fn1 and intervenor plaintiff International Shipping Association ("ISA")*fn2 against the defendant International Transport Workers' Federation ("ITF").*fn3 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.*fn4

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.


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' Federation, 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).

1.  The Anti-Trust Claims

Plaintiffs allege that ITF violated Sections 1 and 2 of the Sherman Anti-Trust Act, 15 U.S.C. § 1-2,*fn5 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 from monopoly prices, and not to serve as a comprehensive code to regulate and police all kinds and types of interruptions and obstructions to the flow of trade." Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 806, 65 S.Ct. 1533, 1538, 89 L.Ed. 1939 (1945). The Second Circuit has explicitly adopted this interpretation, stating that the antitrust laws "were designed principally to outlaw restraints upon commercial competition in the marketing and pricing of goods and services and were not intended as instruments for the regulation of labor-management relations." Kennedy v. Long Island Railroad Co., 319 F.2d 366, 372 (2d Cir. 1963).

To assure that the Sherman Act was applied in accordance with its original purpose, Congress enacted the Clayton Act, which, in relevant part, states "[t]he labor of a human being is not a commodity or article of commerce. [T]he antitrust laws shall [not] be construed . . . to forbid or restrain individual members of such [labor] organizations from lawfully carrying out the legitimate objects thereof." 15 U.S.C. § 17. Thus, two declared congressional policies must be reconciled, one seeking to preserve a competitive business economy, and the other preserving the rights of labor to organize to better its conditions through the agency of collective bargaining. Allen Bradley, 325 U.S. at 806, 65 S.Ct. at 1538.

Further, the Norris-LaGuardia Act, ("Norris-LaGuardia" or the "Act") was passed to restrict the application of the Sherman Act to labor disputes and to reduce the power of the federal courts to intervene in such disputes. See Bodine Produce, Inc. v. United Farm Workers Organizing Committee, 494 F.2d 541, 546 (9th Cir. 1974). The Act stripped the federal courts of jurisdiction "to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute." 29 U.S.C. § 101. Section 13 of the Act defines a labor dispute as "any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee." 29 U.S.C. § 113.

The parties agree that to invoke the statutory labor exemption, three conditions must be met: 1) the party seeking exemption must be a labor group; 2) the labor group must not have acted in concert with a nonlabor group; and 3) the activity must have occurred in the context of a labor dispute. See United States v. Hutcheson, 312 U.S. 219, 232, 61 S.Ct. 463, 466, 85 L.Ed. 788 (1941).

Plaintiffs do not dispute defendant's contention that federal labor law governing the applicability of anti-trust law to labor disputes applies in this case. Nor do plaintiffs dispute that ITF is a labor group. However, plaintiffs deny that defendant satisfies the other two requirements for the labor exemption, and allege that 1) there was no labor dispute in Haifa and 2) ITF acted in concert with non-labor entities in effecting its boycott. See July 11, 1989 Plaintiffs' Memorandum of Law in Reply to Defendant's Motion for Summary Judgment ("Pltfs' Reply Memo") at 2.

Labor Dispute

Plaintiffs argue that the occurrence of violence in a dispute deprives it of status as a "labor dispute" and thus precludes eligibility for the labor exemption from antitrust laws. Specifically, plaintiffs allege that a statement made by Captain Groman, ITF's local inspector in Haifa, in a telex to the owners of the Ocean Sky was a threat of violence warning that they should sign an ITF Special Agreement "in order to avoid damages to the vessel." In addition, plaintiffs contend defendant's actions were "violent" when ITF representatives boarded the Ocean Sky and moved the vessel to another berth in the port, over the objections of its crew. Finally, the ship had to resort to leaving the port without the assistance of pilotage services which it was required to have to leave the port. These actions, plaintiffs contend, take the dispute out of the confines of a labor dispute and deprive it of the labor activity exemption. Pltfs' Reply Memo at 4. We disagree.

Defendant correctly points out that plaintiffs rely on cases which decided only whether a federal court had jurisdiction to issue an injunction against unlawful activity. Even though a court issues an injunction prohibiting violent or unlawful activity, such an action does not necessarily change the nature of the dispute as a labor dispute. Plaintiff relies heavily on Scott v. Moore, 680 F.2d 979 (5th Cir. 1982), rev'd on other grounds, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), a case involving an attack by a group of people on a construction site where nonunion labor was being used. In that case the Fifth Circuit Court of Appeals upheld the issuance of an injunction enjoining the violent conduct, and found that there was not a labor dispute within the meaning of the Norris-La-Guardia Act. Scott, 680 F.2d at 986 n. 3.

In our view plaintiffs misconstrue Scott. The Scott holding was based on the Fifth Circuit's ruling that the attack in that incident did not grow out of any legitimate union activity. Id. at 1000. The court noted there was no collective bargaining agreement, no effort to seek recognition, no solicitation, no informational picketing, nor any other organizational efforts to achieve representation of the nonunion workers. The employer-employee relationship was not the matrix of the controversy. Id; see also Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Association, 457 U.S. 702, 713 n. 12, 102 S.Ct. 2672, 2680 n. 12, 73 L.Ed.2d 327 (1982) (test for determining a labor dispute is whether the employer-employee relationship is the "matrix of the controversy.") Indeed, in Scott the Fifth Circuit stated specifically that "a labor dispute does exist where unlawful conduct occurs in conjunction with some legitimate labor activity." Scott, 680 F.2d at 1001.

In our case there was legitimate labor activity in that Inspector Groman was attempting to protect the interests of the ITF by trying to find out whether the Ocean Sky was covered by an ITF-approved agreement and thus eligible for full service and cooperation from Israeli and ITF-affiliated union members in Haifa. Therefore, it is our view that even if the activities in the instant case are characterized as "violent," the presence of violence alone is not enough to deprive defendant of the labor exemption to anti-trust liability. The cases suggest that the presence of violence does not necessarily allow an anti-trust claim, but rather only allows courts to issue injunctions or to take other action to control the violence.

In the instant case the parties do not dispute that the goal of the ITF activities prompting this lawsuit was the signing of a collective bargaining agreement with the owners of the Ocean Sky, as well as with other FOC shipowners. Nor is there any dispute that the alleged "violence" occurred in the context of ITF's organizing activity. Therefore, we conclude that this was a legitimate labor activity aimed at the employer-employee relationship, and thus a labor dispute.

Non-Labor Entities

Plaintiffs' other argument for denying the labor exemption is that ITF's "blacking" of the Ocean Sky was accomplished in concert with non-labor groups, namely, Histadrut, an Israeli organization, and the shipowners with whom the ITF or its affiliates ...

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