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JOHN F. DILLON & CO. v. FOREMOST MARITIME CORPORATION

June 18, 2004.

JOHN F. DILLON & CO. LLC, Plaintiff
v.
FOREMOST MARITIME CORPORATION, JI MAY NAVIGATION CORPORATION, and TRADIGRAIN SHIPPING, S.A., Defendants.



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

OPINION AND ORDER

John F. Dillon & Co., LLC ("Dillon"), a maritime broker, seeks $160,913 in unpaid commissions allegedly due it pursuant to a charter party agreement plaintiff negotiated among defendants Tradigrain Shipping, S.A. ("Tradigrain"), Foremost Maritime Corporation ("Foremost"), and Ji May Navigation Corporation ("Ji May") in 2001. Plaintiff seeks to recover on three causes of action: 1) breach of contract by Foremost and Ji May, 2) quantum meruit, and 3) tortious interference by Tradigrain with contractual relations between Dillon and Foremost. Defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56 dismissing all claims. Defendant Foremost's motion is granted because Foremost acted as an agent for a disclosed principal, Ji May. Ji May and Tradigrain's motions are granted because this action is governed by a contract and that contract confers no rights on plaintiff as to Ji May and Tradigrain.

I. Background

  The facts underlying this motion for summary judgment are largely undisputed and are taken from the complaint, and the parties' affidavits and statements made in opposition to and in support of summary judgment pursuant to Fed.R.Civ.P. 56.1. Factual disparities are indicated where they appear.

  A. The Parties

  Plaintiff Dillon is a maritime brokerage company organized and operating in the state of Connecticut. Defendant Ji May, a Panamanian corporation, is the owner and operator of the M/V JI MAY. Defendant Foremost, organized under the laws of the state of New York, acted as an agent of Ji May by securing charterers for the M/V JI MAY. Defendant Tradigrain is a Swiss Societe Anonyme and operates in, and is organized under, the laws of Switzerland Tradigrain was the charterer of the M/V JI MAY prior to terminating its involvement in the grain shipping business and filing for the Swiss equivalent of bankruptcy.

  B. The Underlying Charter Party Agreement

  On April 12, 2001, plaintiff, acting as a broker, fixed a charter party agreement between Tradigrain and Foremost ("Tradigrain Charter Party"). (Compl. ¶ 7). That agreement provided that Tradigrain would charter the M/V JI MAY for a minimum of thirty-four months and a maximum of thirty-eight months. (Cardozo Aff., Exh. B, "Charter Party Agreement," Clause 91). The daily rate for hire ranged from $8,500 to $13,000 and fluctuated based on a calculation of the fifteen day average of hire rates on four charter routes, as published by the Baltic Exchange. (Cardozo Aff., Exh. B, "Tradigrain Charter Party," Clause 95; Compl. ¶ 8). Dillon was to be paid a 1.25 percent commission. (Tradigrain Charter Party, Clause 43; Compl. ¶ 9). The commission is set forth in clause forty-three of the Tradigrain Charter Party ("Clause 43"): "A commission of 1.25 percent is payable by the Vessel and the Owners to John F. Dillon & Co., Stamford on hire earned and paid under this Charter, and also upon any continuation or extension of this Charter." (Id.) The parties operated in accordance with that agreement until January 29, 2002, during which time Dillon was paid a 1.25 percent commission on all hire paid. (Ji May Rule 56.1 State. ¶ 33).

  C. The Charter Party Agreement Terminates

  On March 5, 2002, Farmland Industries, Inc., the parent company of Tradigrain, publically announced that Tradigrain would be leaving the grain trading business. (Compl. ¶ 12; Cardozo Aff., Exh. C). After learning this fact, all the parties to this action took steps to ensure that the M/V JI MAY would remain in use after Tradigrain exited the business. Foremost employees made inquiries with charterers known to them, and contacted at least one broker. (Depo. James Chao, 35:19; 37: 17-23). Tradigrain continued to charter the vessel and participated in the search for a replacement charterer. (Aff. Ziccardi, Exh. 1, "Aff. Dillon" ¶ 10).

  Dillon also attempted to locate a company willing to substitute for Tradigrain under the original charter party agreement. (Compl. ¶ 15). Dillon composed a list of shipping companies it planned to approach about assuming that contract. (Aff. Kenney, in Aff. Ziccardi, Exh. 2, ¶ 14). A company called Bunge, S.A. was on the list Dillon prepared and a Dillon employee, broker Chris Kenney, telephoned Bunge about the charter party on March 7, 2002. (Id. ¶ 14). The next day, before Kenney placed a follow-up call to Bunge on behalf of Dillon, he was informed by Piero Raveno, a Tradigrain employee, that he should "back off" of Bunge. (Compl. ¶ 17, Aff. Kenney, in Aff. Ziccardi, Exh. 2, ¶ 14). Plaintiff alleges that Ravano had certain familial connections to Bunge and the broker that Bunge worked with, Ifchor, and therefore hoped to secure commissions for them. (Compl. ¶ 18, Aff. Kenney in Aff. Ziccardi, Exh. 2, 14-16). Dillon also claims that in the March 8th conversation, when Raveno allegedly told Kenney to "back off" of Bunge, he also assured Dillon that its commission under the April 12, 2001 charter party agreement would be preserved. (Compl. ¶ 17). Plaintiff claims that this assurance dissuaded it from contacting Bunge directly, but that Dillon continued to search for a potential charterer. From March 5th until Dillon learned on March 13th that a charterer had been found, it continued to work on finding a replacement. Christopher Kenney testified that Dillon contacted Armada Shipping and solicited a charter proposal. (Depo. Kenney 107-108; Aff. Ziccardi, Exh. 2 ¶ 19). Armada was prepared to agree to the terms of the original Tradigrain Charter Party provided it was extended for six months. (Id.) Plaintiff offers that proposal to support its position that it did procure a willing and able party to enter into the charter agreement with Foremost.

  During this period, for reasons unrelated to the search for a replacement charterer, a Dillon employee met with the Senior Vice President of Foremost, Michael Lee, on March 11, 2002. (Lee Depo. 84: 15-25). At that meeting they discussed the Tradigrain situation. (Id., at 85:14-18). Dillon claims that Foremost, at the time of that meeting, "failed to disclose fully its dealings with Tradigrain and Bunge." (Plt's Rule 56.1 State., ¶ 14). Defendants confirm that on March 11, 2002, sometime after the meeting started, Foremost received an offer from Bunge to charter the M/V JI MAY. (Foremost Rule 56.1 State., ¶ 16). However, Dillon employee Christopher Kenney stated that Dillon knew at the time of that meeting that it did not have the exclusive right to find a replacement for the charter party agreement. (Depo. Kenney 19-25). Dillon has not alleged that it had presented any potential charterers to Foremost as of that date.

  During the seven days following the March 11 offer, Foremost and Ifchor, on behalf of their principals, negotiated Bunge's offer to charter M/V JI MAY. (Foremost Rule 56.1 State., ¶ 18). On March 13, Tradigrain told Dillon that the M/V JI MAY would be redelivered to Bunge. (Compl. ¶ 19; Cardozo Decl. Supp. Tradigrain's Mot. Summ. J. ("Cardozo Decl.," Exh. E)). That same day, Tradigrain and Foremost also agreed to a termination of the Tradigrain Charter Party without penalty. (Cardozo Decl. Exh. E & J, Chao Depo., 135:19-137:6). On March 15, 2002, Michel Roduit, a director of Tradigrain, signed a letter memorializing an agreement between Tradigrain and Ji May to "cancel the Charter Party dated 12th of April 2001 . . . simultaneously without any penalty for either side." (Cardozo Aff., Exh. E).

  Three days later, a charter party was signed between Bunge and Ji May for the M/V JI MAY ("Bunge Charter Party"). That charter party resembles the Tradigrain Charter Party. However, it has one different party — Bunge — and at least one different term; the length of hire is twenty-eight to thirty-two months. (Cardozo Aff., Exh. F). The Bunge Charter Party also specifically provides in its Clause 43 that commissions shall be paid to Ifchor, not Dillon. (Id.). Notwithstanding this agreement, plaintiff contends that the redelivery of the vessel to a new charterer was governed by the Tradigrain Charter Party of April 12, 2001 that Dillon brokered and the new charter party was an assignment of the Tradigrain Charter Party. (Plt.'s Rule 56.1 State., ¶ 19). Plaintiff alleges that the charter party agreement between Foremost and Bunge is not a new agreement because its underlying substance is the same as the original April 12, 2001 charter party and therefore it is a "direct continuation" of the Tradigrain Charter Party for which it is due commissions. (Plt's Rule 56.1 State., ¶ 20).

  II. Analysis

  A. Jurisdiction

  "A plaintiff who has a cause of action cognizable both under federal admiralty law and under state law . . . may bring (1) a federal admiralty action in federal court, (2) an action in state court, or (3) a diversity action in federal court, assuming the additional requirements for diversity jurisdiction are met." Dluhos v. Floating and Abandoned Vessel, Known as New York, 162 F.3d 63, 71, 73 (2d Cir. 1998); Fed.R.Civ.P. 9(h). There is an exception that requires a plaintiff bringing certain types of in rem actions to do so pursuant to admiralty law. Id. This is not such a case.

  The plaintiff has brought this action before this Court on diversity jurisdiction, pursuant to 28 U.S.C. § 1332. The parties agree that New York substantive law should apply to the claims asserted and have therefore invoked the right to pursue a common law remedy, as set forth in 28 U.S.C. § 1333(1). See American Dredging Co. v. Miller, 510 U.S. 443, 446-47 (1994). Plaintiff has satisfied the statutory prerequisites to establishing diversity jurisdiction pursuant to 18 U.S.C. § 1332 because plaintiff and defendants do not reside in the same state, and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. Therefore, subject ...


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