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