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SEA TRADE COMPANY LTD. v. FLEETBOSTON FINANCIAL CORP.

SEA TRADE COMPANY LTD., TRADEWINDS ENTERPRISE (JERSEY) LTD., ROBINSON FLETAMENTOS, S.A., AGENCIA MARITIMA ROBINSON, S.A.C.F.I., NANI SHIPPING CORP. LTD., and ADROGUE CHICO, S.A., Plaintiffs,
v.
FLEETBOSTON FINANCIAL CORP., Defendant.



The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge

MEMORANDUM OPINION AND ORDER

Procedural Background

This is an action for damages for what plaintiffs contend is a failure on the part of the defendant, FleetBoston Financial Corp. ("FleetBoston"),*fn1 to honor an oral commitment to extend lines of credit to several businesses operating in Argentina. FleetBoston has moved the Court to dismiss plaintiffs' action pursuant to Federal Rule of Civil Procedure 12(b) (6). It is the defendant's position that the oral agreements are unenforceable because they do not satisfy the statute of frauds and do not fit within any of the recognized exceptions to the statute. Furthermore, FleetBoston argues that the plaintiffs lack the standing necessary to assert the claims contained within the complaint. For the reasons set forth herein, defendant's motion to dismiss is denied in part and granted in part.

  Facts

  In deciding a motion to dismiss a complaint as failing to sate a claim on which relief can be granted pursuant to Rule 12(b) (6), a district court is obligated to view the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 237 (1974); Yoder v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 562 (2d Cir. 1985). This demands that the court accept as true the factual allegations stated by the plaintiff in its complaint. See Zinermon v. Burch, 494 U.S. 113, 118 (1990). Any reasonable inferences that may be drawn from the stated facts must be drawn in plaintiff's favor. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). As such, the facts set forth herein are drawn from the complaint.

  The Plaintiffs

  Plaintiffs Robinson Flemtamentos, SA ("Robflesa"), Agencia Maritima Robinson S.A.C.F.I. ("AMR") and Adrogue Chico are Argintine entities that share the same principals, Ricardo Gaston Cazou ("Cazou") and Andrew George Robinson ("Robinson"). Robflesa and AMR are in the shipping business and Adrogue Chico is involved with housing developments. Dating back to the 1980's these companies and their affiliates have used the international banking division of BankBoston, now a New York City based division of defendant, as their principal bank.

  In order to provide banking services for Robflesa and AMR and take advantage of certain tax laws, Plaintiff Sea Trade Company Ltd. ("Sea Trade") was organized under the laws of the Bahamas by BankBoston International ("BankBoston"). According to plaintiffs, Sea Trade's only function is to handle financial transactions for a second off-shore company, Plaintiff Tradewinds Enterprises (Jersey) Ltd. ("Tradewinds"), also organized by BankBoston under the laws of the Bailiwick of Jersey. Tradewinds in turn operated an international ship brokering business through its agent Robflesa, utilizing the BankBoston bank accounts owned by Sea Trade. Although Sea Trade, Tradewinds, Robflesa and AMR are separate legal entities, Sea Trade and Tradewinds were created solely to benefit Robflesa and AMR. It was the intention of the plaintiffs and BankBoston that the four entities would work in concert for the mutual benefit of one another. Similarly, Plaintiff Nani Shipping Corp. Ltd. ("Nani Shipping") was created by BankBoston under the laws of the Bahamas to function as a banking vehicle for Adrogue Chico.

  The Charter Contract

  Two major charterers, Centenary S.A. and Navynor S.A., sought to retain Tradewinds as its exclusive broker for all of their freight transactions. As part of this arrangement Tradewinds was to provide financing in a revolving amount of $1 million, and in return, receive a commission of the freight charges. AMR was to benefit as the ship's agent from an increased volume of fees. In order to finance the relationship, however, Tradewinds needed to secure a line of credit from BankBoston.

  Plaintiffs met with Ricardo Carrasco ("Carrasco"), the BankBoston official who had for some time handled plaintiffs' accounts and was responsible for the creation of Sea Trade, Tradewinds and Nani Shipping. Plaintiffs also met with Cecilia Recalde, another BankBoston official, to explain the proposed transaction. Plaintiffs hoped to obtain the $1 million line of credit necessary to finance the deal. Carrasco declined to extend a $1 million line of credit, but agreed to grant Sea Trade an unsecured line of credit for $400,000 to fund the Centenary/Navynor contract. According to plaintiffs, Carrasco did not ask that the agreement, which was to finance a 4 year shipping contract that could be renewed for another 2 years, be memorialized in writing. This, they claim, was "consistent with the history of the account." In practice, the line of credit was more or less an agreement to allow Sea Trade to overdraw its account by up to $400,000.

  Relying on the agreement with BankBoston, the charter agreement was entered into in September of 1997. In 1998, however, Carrasco disappeared after the bank began to suspect that he had been scheming to divert substantial assets from BankBoston. Concerned by what it believed Carrasco to be guilty of and by the fact that he had apparently fled, in February of 1998, BankBoston froze all of the accounts for which he had served as the primary loan officer. Included among the accounts frozen was Sea Trade's account. Cazou and Robinson protested the freeze, claiming the agreement had been in effect for nearly six months and there had never been any improprieties associated with their account. In response, BankBoston offered to reactivate Sea Trade's account if the company would agree to certain modifications to its terms, including providing collateral. Sea Trade objected to the modifications and the account remained closed. Its access to credit gone, Tradewinds began defaulting on contracts. In April Centenary and Navynor suspended the Exclusivity and Financing Contract.

  The Housing Project

  The claim brought against defendant by Adrogue Chico and Nani Shipping follows a similar script to the one offered by their fellow plaintiffs. In need of capital to develop a housing project on the outskirts of Buenos Aires, Cazou was introduced to Carl Kishman ("Kishman") of BankBoston's Buenos Aires office. Officials within the Buenos Aires office studied the proposed Adrogue Chico project that Cazou had presented to Kishman and Carrasco and in ...


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