leave is hereby granted to Welgrow to apply again for a dismissal or stay in favor of the Antwerp action.
II. Summary Judgment
The Rule 56 motion for summary judgment is "an integral part" of the Federal Rules of Civil Procedure and facilitates the overall purpose of the Rules "to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548. A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Rule 56(c), Fed. R. Civ. P.; Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991). If, when "viewing the evidence produced in the light most favorable to the nonmovant . . . a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991). However, "all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (Brennan, J., dissenting); Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)); see United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992); Burtnieks v. City of New York, 716 F.2d 982, 983-84 (2d Cir. 1983).
Summary judgment is inappropriate at this juncture. Issues of fact remain with regard to the existence and enforceability of an agreement among Evergreen, Welgrow and Grisar to excuse Welgrow from liability for detention charges and impose such liability on Grisar.
Evergreen advances several arguments for its contention that there is no genuine issue of fact as to the existence and extent of Welgrow's liability under the contract. First, they contend that, even if there was an agreement among the parties, because the alleged modification was not filed with the Federal Maritime Commission, as required by federal regulations, the modification would be unenforceable as a matter of law. However, the purpose of the filing requirements is to permit the FMC to monitor rates being charged to shippers and to ensure that shippers are aware of, and able to take advantage of, contract rates made available by a carrier to similarly-situated shippers. See 46 CFR §§ 514.7(f), 514.7(g)(2)(i). There is no indication in the regulations themselves, and the Court has found no authority holding, that the failure to file a modification with the FMC renders the modification unenforceable as a matter of law. Indeed, it would be incongruous to use regulations designed to protect shippers to deprive a shipper of the benefit of a modified contract.
Evergreen next argues that the Contract's integration clause renders any alleged modification unenforceable. First, they contend that the clause's requirement that modifications be in writing precludes evidence of an oral modification. However, as Evergreen itself acknowledges, there is an exception under New York law when there is partial performance of the modification that is traceable to the alleged modification. See Rose v. Spa Realty Associates, 42 N.Y.2d 338, 343, 366 N.E.2d 1279, 397 N.Y.S.2d 922 (1977) (part performance of alleged oral modification renders modification enforceable; moreover, contract prohibition on oral modification can itself be waived orally); Grandonico v. Consortium Condominium, 566 F. Supp. 1288, 1291 (S.D.N.Y. 1983). Here, there are sufficient facts to support a finding that Grisar had partially performed a modification of the Contract that made it liable for detention charges. Grisar made payments to Evergreen for detention charges. Such payments clearly constitute part performance of the alleged modification. Moreover, several additional facts buttress the conclusion that Grisar's part performance is traceable to a modification: Evergreen's bills of lading named Grisar as a responsible party, the invoices for detention charges were issued solely to Grisar, Grisar reimbursed Welgrow for payments it made on detention charges, and a number of Grisar's communications to Evergreen acknowledge its obligation to return containers to Evergreen and pay withheld detention charges.
Evergreen also contends that some of the evidence advanced by Welgrow to create an issue of fact as to contractual liability for the detention charges is inadmissible parol evidence precluded by the Contract's integration clause. Evergreen argues that discussions prior to the formation of the original Contract and the November 9, 1992 amendment are not admissible to vary the express terms of the agreement. However, it need not be decided at this time whether such evidence would be admissible, since the evidence asserting the formation of the modification and of Grisar's part performance of the alleged modification raises a sufficient factual dispute to preclude summary judgment.
Finally, Evergreen contends that there is no consideration for the purported modification. However, the extinguishment of the parties' prior obligations constitutes sufficient consideration for the substituted agreement among new parties. Town & Country Linoleum & Carpet v. Welch, 56 A.D.2d 708, 709, 392 N.Y.S.2d 517, 519 (4th Dept. 1977). Evergreen could have bargained for the substitution because of Grisar's proximity to Evergreen's European ports and superior ability to track the movement of containers bound for Eastern Europe. Even if there is no valid legal consideration for the alleged modification, the doctrine of promissory estoppel might apply to make the modification enforceable. See Kasper v. Roberts, 119 Misc. 2d 829, 832, 464 N.Y.S.2d 642, 645 (N.Y.City Civ.Ct. 1983) (consideration or consideration substitute required for novation). A fact-finder might conclude that Welgrow reasonably relied upon the modification to its detriment.
Accordingly, an issue of fact remains with regard to the validity of the alleged modification. Therefor, the motion for summary judgment will be denied.
Any arguments advanced by a party on which the Court has not commented have been considered by the Court and rejected as irrelevant or meritless.
For the reasons discussed above, Evergreen's motion for summary judgment is hereby denied. Welgrow's motion to dismiss is hereby denied, with leave to renew upon a showing that it has submitted to the jurisdiction of the Antwerp Court. The motions to strike are summarily denied, but this denial does not constitute a ruling on the admissibility of the challenged evidence at trial.
It is so ordered.
New York, N. Y.
October 22, 1996
ROBERT W. SWEET