author: GOETTEL, District Judge:

text:
    INTERNATIONAL TELEVISION PRODUCTIONS LTD. and Harold M. Cerra, Plaintiffs, v. TWENTIETH CENTURY-FOX TELEVISION DIVISION OF TWENTIETH CENTURY-FOX FILM CORPORATION, Jerry Harrison & Associates, Inc. and Jerry Harrison, Defendants.
    No. 84 Civ. 8795 (GLG).
    United States District Court, S.D. New York.
    Dec. 5, 1985.

      Jon M. Kaufman, New York City, for plaintiffs.
    Bushkin, Gaims, Gaines, Jonas & Stream, New York City, for defendant Twentieth Century-Fox Television Div. of Twentieth Century-Fox Film Corp.; Jeffrey T. Strauss, of counsel.
   OPINION

GOETTEL, District Judge:

Although two defendants are named in this suit, only one, Twentieth Century-Fox Television Division of Twentieth Century-Fox Film Corporation (“Fox”), has been served. Four causes of action have been interposed thus far against Fox, with a fifth apparently forthcoming. Before the Court are Fox’s motions to dismiss various aspects of the amended complaint that charge it with wrongdoing.

I. Background

The amended complaint alleges the following facts which we deem true for the purpose of evaluating the motions to dismiss. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

Plaintiff International Television Productions Ltd. (“ITP”) is a Bermuda corporation with its principal place of business in London, England. On June 17, 1980, ITP entered into a joint venture with defendant Jerry Harrison & Associates (“Harrison”), a New York corporation. The joint venture was to produce a series of television programs entitled “The Roots of Rock ’N Roll.”

On October 27, ITP and Harrison (collectively “the joint venture”) finalized a written distribution agreement (“the distribution agreement”) with defendant Fox. The joint venture promised to produce and deliver six one-hour television programs to Fox. In return, Fox, which received the exclusive right to distribute the programs, promised, inter alia, to distribute the programs world-wide and to account to the joint venture for the proceeds. Fox also agreed to pay $100,000 to the joint venture after the delivery of each show. Another plaintiff, Harold M. Cerra (“Cerra”), agreed to advance Harrison substantial sums to finance its share of the production costs. In exchange, Harrison agreed to repay Cerra from the revenues remitted by Fox. According to the amended complaint, Fox had actual or constructive knowledge of the joint venture agreement and of the Harrison-Cerra agreement.

ITP and Cerra allegedly met all of their obligations under the various agreements, and Fox accepted delivery of six programs from the joint venture. The programs were originally broadcast in 1981 and subsequently licensed abroad and rebroadcast. Nevertheless, Fox, in purported violation of its agreement with the joint venture, refused to pay $300,000 of the $600,000 called for in the distribution agreement as an advance against ultimate royalties. Fox has also allegedly failed to account accurately for the proceeds and profits from the distribution of the program.

The amended complaint is a mass of legalisms, interspersed with facts that do little to inform the reader. As best we can interpret this conundrum, it appears to set forth four claims for relief. The first is that Fox was obligated to pay $600,000 to the joint venture (in $100,000 installments after the delivery of each program) yet only paid half of this amount. The second claim is that ITP did not receive its share of $250,000 that Fox paid the joint venture. There are also two fraud claims. The plaintiffs allege that Fox misrepresented certain financial projections in a September 1981 letter to Harrison, as agent for the joint venture. The joint venture and plaintiff Cerra allegedly relied on the letter to their detriment. Fox allegedly perpetrated a second fraud when it delivered certain false accounting statements to ITP. These statements misstated the proceeds and profits from the program’s distribution, thereby preventing ITP from obtaining its rightful share of the distribution revenue. The plaintiffs seek compensatory and punitive damages for these frauds.

The plaintiffs derive five causes of action from these four claims. The first claim, for breach of contract, is set forth in the first cause of action along with the claim of failure to account for proceeds under the distribution agreement. The plaintiffs seek $275,000 in damages for this claim, but we do not understand how this amount is arrived at. The second claim is set forth as the second cause of action, against Harrison only, seeking $275,000 in damages. (Again, we do not understand how the $275,000 damage demand for this cause of action was arrived at.) The two fraud claims are jointly set forth in the third cause of action. The plaintiffs seek $400,-000 in compensatory damages jointly for the two frauds. They also demand punitive damages on these claims. Finally, the plaintiffs contend that the previously mentioned four claims together constitute a restraint of trade that violates the antitrust laws of the United States (the fourth cause of action) and of New York (the fifth cause of action).

The plaintiffs commenced this action in state court by serving Fox, which then removed the action to this Court pursuant to 28 U.S.C. § 1446 (1982). Fox then moved to dismiss; the plaintiffs amended their complaint in response; and Fox brought another motion to dismiss. Before the Court is Fox’s second motion against the amended complaint, pursuant to Fed.R. Civ.P. 12(b)(6), to dismiss the first, fourth, and fifth claims and the punitive damage aspect of the third claim, for failure to state a claim on which relief can be granted. It also moves, pursuant to Fed.R. Civ.P. 12(e), for a more definite statement of the damages sought on the third claim.

II. Discussion

A. Motion to Dismiss the First Claim

Fox asserts that the rules of law applicable to joint ventures preclude both plaintiffs from maintaining their first cause of action. Paragraphs 20 and 21 of the amended complaint are the heart of that claim. These paragraphs respectively state, “Fox ... has failed and refused to advance to the Joint Venture not less than $300,000 of the $600,000 called for in the Production-Distribution Agreement,” Amended Complaint 1Í 20, and “Fox ... has failed and continues to fail to account accurately for the proceeds and profits of the distribution of the Programs,” Amended Complaint 1121. Fox correctly points out that these claims belong to the joint venture. Neither ITP nor Cerra may assert them individually, yet this is what they attempt.

The rules of law applicable to partnerships also govern joint ventures. D’Ippolito v. Cities Services Co., 374 F.2d 643, 647 (2d Cir.1967); 16 N.Y.Jur.2d § 1594 at 274 (1981). Fallone v. Misericordia Hospital, 23 A.D.2d 222, 226, 259 N.Y.S.2d 947 (1st Dep’t 1965), aff'd, 17 N.Y.2d 648, 269 N.Y.S.2d 431, 216 N.E.2d 594 (1966). A partner who seeks to recover a debt due the partnership, must sue in the partnership’s name or on its behalf. Kirschbaum v. Merchants Bank, 272 A.D. 336, 71 N.Y.S.2d 79 (1st Dep’t 1946). A partner who seeks an accounting must do the same. Stevens v. St. Joseph’s Hospital, 52 A.D.2d 722, 381 N.Y.S.2d 927 (4th Dep’t 1976). The same rules apply to joint ventures. These rules mandate the dismissal of the first claim, which seeks the precise relief — recovery of a joint venture’s debt and an accounting on its behalf — that the courts have held to belong solely to the venture. ITP, a member of the venture, may not assert these claims in its individual capacity. Cerra, who is neither a member of the venture nor a party to an agreement with the venture, may not assert either claim. The claims of both plaintiffs in the first cause of action are, therefore, dismissed.

B. Motions to Dismiss the Antitrust Claims

1. The Sherman Act Claim

The plaintiffs claim that the agreement between Fox and Harrison pursuant to which Harrison allegedly breached the joint venture agreement violates section 1 of the Sherman Antitrust Act, which makes illegal “[e]very contract, combination ..., or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations____” 15 U.S.C. § 1 (1982). Fox interposes a variety of objections to this claim. According to Fox, the plaintiffs have not properly alleged a contract, combination, or conspiracy; they do not have standing to assert their claims, and they have not alleged “antitrust injury.” These arguments are misguided. The amended complaint’s failure to allege a substantive violation of the antitrust laws, nevertheless, mandates the dismissal of the Sherman Act claim.

a. Contract, Combination, or Conspiracy

Absent an agreement between two or more independent business entities, there can be no violation of section 1. World Arrow Tourism Enterprises, Ltd. v. Trans World Airlines, Inc., 582 F.Supp. 808, 810-11 (S.D.N.Y.1984). Neither a conclusory allegation of a conspiracy, Lombard’s, Inc. v. Prince Manufacturing, Inc., 753 F.2d 974, 975 (11th Cir.1985), nor an allegation of a unilateral business decision, World Arrow Tourism Enterprises, Ltd., supra, 582 F.Supp. at 810-11, will survive a motion to dismiss. The complaint must identify the co-conspirators, and describe the nature and effects of the alleged conspiracy. General Electric Co. v. Bucyrus-Erie Co., 563 F.Supp. 970, 975 (S.D.N.Y.1983).

Fox contends that the amended complaint charges only unilateral activity. A careful reading of the amended complaint belies this assertion. Paragraph 24, incorporated by reference in the fourth and fifth claims, states, “Between October 27, 1980 and June 1981, on at least two separate occasions, in violation of the Production-Distribution Agreement, defendants agreed that defendant Fox would disburse and defendant Harrison & Associates would receive not less than $250,000 from the funds intended for the joint venturers.” Amended Complaint ¶ 24. This paragraph identifies two parties to an agreement and specifies the content of that agreement. The plaintiffs need not, as the defendant maintains, identify the consideration for the agreement. See Fed.R.Civ.P. 8. The pleadings suffice to withstand this branch of the motion to dismiss.

b. Antitrust Standing and Antitrust Injury

According to Fox, neither plaintiff has standing under the antitrust laws to bring its claim nor has either alleged the requisite “antitrust injury.”

1) Antitrust Standing

The Supreme Court has termed the question of antitrust standing an inquiry into the conceptually difficult question of “ ‘which persons have sustained injuries too remote [from an antitrust violation] to give them standing to sue for damages____’” Blue Shield v. McCready, 457 U.S. 465, 476, 102 S.Ct. 2540, 2546, 73 L. Ed.2d 149 (1982) (quoting Illinois Brick Co. v. Illinois, 431 U.S. 720, 728 n. 7, 97 S.Ct. 2061, 2065 n. 7, 52 L.Ed.2d 707 (1977)). The Court has identified several factors that should guide the standing inquiry. Factors weighing against a grant of standing include the speculative nature of the damage theory alleged, the risk of duplicative recoveries, and the danger of complex apportionment of damages. Those that counsel for a grant of standing are the directness of the asserted injury, the presence of an improper motive for the conduct alleged, and the manageability of the resulting litigation. Associated General Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (‘‘Associated General Contractors ”); see also Triple M. Roofing Corp. v. Tremco, Inc., 753 F.2d 242, 247 (2d Cir.1985) (listing factors).

The defendant’s objection to ITP’s standing borders on the ludicrous. None of the factors weigh against granting standing to ITP; in fact, most weigh in its favor. ITP is the direct victim of the allegedly unlawful conspiracy. The potential for duplicative recoveries or complex apportionment of damages is nil, and the relationship between the conduct alleged and the alleged injury is neither tenuous nor speculative.

Dicta from the Supreme Court’s opinion in Associated General Contractors supports our conclusion that ITP has antitrust standing to assert its claims. The plaintiffs in that case, various unions and their local affiliates, claimed that the Associated General Contractors, an association of building and construction contractors, conspired with members and nonmembers of their association in an effort to coerce subcontractors to refrain from hiring members of the plaintiff unions. “According to the complaint, defendants applied coercion against certain landowners and other contracting parties in order to cause them to divert business from certain union contractors to nonunion contractors.” Associated General Contractors, supra, 459 U.S. at 540, 103 S.Ct. at 910. After noting that any damages suffered by the Union as a result of this scheme were only an indirect result of the scheme, the Court stated, “If either [the contractors or subcontractors], or the immediate victims of coercion by defendants have been injured by an antitrust violation, their injuries would be direct and ... they would have [standing] ... to maintain their own treble damages actions against the defendants.” Id. 103 S.Ct. at 911. Here, ITP, the alleged victim of an agreement by two parties to freeze it out of the market, is comparable to the contractors and subcontractors. The above-noted dicta thus supports our conclusion that ITP has standing to bring this action under the antitrust laws.

On the other hand, the Supreme Court’s balancing test counsels us to deny standing to Cerra. Cerra is the indirect victim of any scheme to restrain competition and his damages will be difficult to calculate. Moreover, the relationship between Cerra’s injury and the conduct alleged is speculative at best. Where the direct victim of an antitrust violation brings suit, Cerra, the indirect victim, may not bring suit on the same claim.

2) Antitrust Injury

Antitrust standing and antitrust injury involve separate though related inquiries. The inquiry relative to antitrust standing concerns the relationship between the plaintiff’s injury and the alleged violation. Antitrust injury looks only to the nature of the alleged injury. In order to allege antitrust injury, a plaintiff must allege “injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendant’s acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of the anticompetitive acts made possible by the violation.” Brunswick v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). “[A] claim of injury arising from the preservation of competition is a claim ‘inimical to the purposes of [the antitrust] 'laws.’ ” Blue Shield v. McCready, supra, 457 U.S. at 483 n. 19, 102 S.Ct. at 2550 n. 19 (quoting Brunswick v. Pueblo Bowl-O-Mat, Inc., supra, 429 U.S. at 488, 97 S.Ct. at 697).

ITP alleges that one of its competitors, Harrison, conspired to damage its business. Although there are many forms of antitrust injury, see Blue Shield v. McCready, supra, 457 U.S. at 482-83, 102 S.Ct. at 2550, an injury suffered by one competitor by virtue of a conspiracy engaged in by another competitor is, if not prototypical, certainly the kind of injury about which the antitrust laws are concerned. Id. at 484, 102 S.Ct. at 2551. For example, in Blue Shield v. McCready, the Court examined a scheme in which the plaintiff, a Blue Shield subscriber, alleged that Blue Shield had conspired with psychiatrists to deny reimbursement to psychologists. The Court stated, “the antitrust injury, [in the event that psychologists were successfully boycotted], would have been borne in the first instance by the competitors of the conspirators____” Id. at 483, 102 S.Ct. at 2550. In this case, the alleged antitrust injury was in the first instance borne by ITP.

c) The Substantive Violation

Except in the narrow class of per se cases, a plaintiff alleging a violation of section 1 of the Sherman Act must show that the defendants acted to restrain competition. 1 E. Kintner, Federal Antitrust Law § 8.3 (1980). In order to make such a showing and thereby survive a motion to dismiss, a section 1 claimant must identify the relevant product market and “allege how the net economic effect of the alleged violation is to restrain trade in the relevant market, and that no reasonable alternate source is available” to consumers in that market. Gianna Enterprises v. Miss World (Jersey) Ltd., 551 F.Supp. 1348, 1355 (S.D.N.Y.1982). The only market to which the plaintiffs refer is the market for “the development, production, and distribution of television shows and series.” Amended Complaint ¶ 37. This broad allegation will not suffice to delineate the relevant market in an antitrust complaint. The plaintiffs have not even attempted to explain this vague market definition. See Gianna Enterprises, supra, 551 F.Supp. at 1354. In addition, they have not specified the economic impact in the relevant market. Having failed to allege a restraint on competition, the plaintiffs only recourse is to allege a per se violation of the antitrust laws. If such a violation is alleged, the plaintiffs need not show a deleterious impact on competition. Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958) (“[B]ecause of their pernicious effect on competition and lack of any redeeming virtue, [these practices] are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.”). The Court must therefore determine whether an agreement to breach a single contract — absent a refusal to buy or sell from the alleged target of the contract — constitutes a per se violation of the antitrust laws.

The only conceivable case authority that supports construing the conduct alleged herein as a per se violation of the antitrust laws is Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959) (“Klor’s ”). In Klor’s, the Supreme Court found a per se violation where the defendants, a chain of retail appliance stores and its various distributors and their manufacturers had banded together and agreed not to sell to the plaintiff, a small retail appliance store. According to Klor’s, “individual refusals to deal, when supported by outside agreements with the victim’s competitors, [will] not be tolerated.” 2 E. Kintner, Federal Antitrust Law § 10.30 at 164 (1980). It matters not whether the agreement’s effect on competition is de mimimus, id. at 164, or that it does not effectively exclude its victim from the market. Associated General Contractors, supra, 459 U.S. at 528, 103 S.Ct. at 903.

We do not believe Klor’s proscribes the conduct herein, i.e., it does not apply to an agreement by a purchaser to assist one supplier in breaching a contract with another supplier. This conduct is not so pernicious as to warrant a presumption of anticompetitiveness. Indeed, a common law action for breach of contract or tortious interference with business relations can redress this alleged wrong. Neither of the defendants has refused to deal with the plaintiffs; rather, they have allegedly combined to undermine a contract. Absent a showing that competition has been impaired, the Court will not allow the conversion of this breach of contract claim into a treble damage claim under the antitrust laws.

Because the amended complaint fails to state a claim under section 1 of the Sherman Act, the motion to dismiss the fourth claim is granted.

B. The Donnelly Act Claim

The allegations that underlie the plaintiffs’ claim under New York’s antitrust statute, the Donnelly Act, N.Y.Gen. Bus.Law § 340 (McKinney 1968), are identical to those that support its Sherman Act claim. Not surprisingly, the defendant moves to dismiss this claim as well.

The Donnelly Act prohibits
[e]very contract, agreement, arrangement or combination whereby ...
Competition or the free exercise of any activity in the conduct of any business, trade or commerce or in the furnishing of any service in this state is or may be restrained or whereby
For the purpose of ... unlawfully interfering with the free exercise of any activity in the conduct of any business, trade or commerce or in the furnishing of any service in this state any business, trade or commerce or the furnishing of any service is or may be restrained____

N.Y.Gen.Bus.Law § 340 (McKinney 1968). Most Donnelly Act claims are analyzed under a rule of reason analysis. 14 J. Von Kalinowski, Antitrust Laws and Trade Regulation § 164.01[1] (1985). This analysis applies to group boycotts like the one alleged herein, see supra p. 1539. Id. at 164-11 (and cases cited therein). In order to survive a motion to dismiss a Donnelly Act claim that is susceptible to analysis under the rule of reason, a complaint must allege an anticompetitive effect in the market in which the plaintiff competes. Saxe, Bacon & Bolan, P.C. v. Martindalle-Hubbell, Inc., 710 F.2d 87, 90 (2d Cir.1983); State v. Mobil Oil Corp., 38 N.Y.2d 460, 381 N.Y.S.2d 426, 344 N.E.2d 357 (1976); Dawn to Dusk, Ltd. v. Frank Brunckhorst Co., 23 A.D.2d 780, 781 (2d Dep’t 1965). Because the plaintiffs have failed to adequately delineate the market in which they operate or to indicate how competition in that market has been impaired, the amended complaint fails to state a claim under the Donnelly Act.

Alternatively, the fifth claim must be dismissed for failure to allege the requisite economic impact in this state. Such failure constitutes sufficient grounds for dismissing a claim under the Donnelly Act. Baker v. Walter Reade Theatres, Inc., 37 Misc.2d 172, 237 N.Y.S.2d 795, 796 (Sup.Ct.N.Y.County 1962) (dismissing Donnelly Act claim because alleged wrongful contract had impact outside New York).

ITP, a Bermuda corporation with its principal place of business in London, has not indicated how the scheme alleged herein affected New York commerce. If ITP’s ability to compete in the markets for the production or development of TV programs was harmed, any impact occurred in London, not in New York, where, by its own admission, ITP does not do business. Defendant’s Notice of Motion, Exhibit E. Any indirect economic impact in New York is purely speculative and outside of the scope of activity that the Donnelly Act addresses.

C. The Fraud Claim

The amended complaint demands $400,-000 in compensatory damages and $1,200,-000 in punitive damages for the fraud claimed in the third cause of action. Fox objects to both demands. It moves for a more definite statement of the request for compensatory damages and to dismiss the claim for punitive damages.

Fox asserts that the $400,000 demand is ambiguous, forcing it to guess whether the demand includes the damages sought on the breach of contract claim. Fox contends that this ambiguous demand violates Fed. R.Civ.P. 10(b) which states, “Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.” Fed.R.Civ.P. 10(b). The Court does not understand the defendant’s contention. Rule 10(b) regulates the substance of a claim, not the content of the ad damnum clause. The third claim complies with the letter of this rule. Indeed, by specifying their damages, the plaintiffs have exceeded the requirements of the Federal Rules of Civil Procedure. Everco Industries, Inc. v. O.E.M. Products Co., 63 F.R.D. 662, 666 (N.D.Ill.1974) (while damages may not be determined by mere speculation or guess, it is sufficient to state the nature of the damages and allow the issue to be further developed by pretrial discovery). If Fox has any trouble understanding the ad damnum clause, it can sharpen its understanding through discovery.

We do note that the second claim of fraud, for false accounting of revenue and expenses, would seem to be the joint venture’s claim, not the plaintiff’s. However, defendant Fox has not moved against that aspect of the complaint. The nebulous nature of the ad damnum is, in part, a consequence of that improper joinder of claims.

Fox also insists that the pleadings do not allege facts sufficient to state a claim for punitive damages. In order to state such a claim, a complaint alleging fraud must plead and prove “gross, wanton, or wilfull fraud or other morally culpable conduct. Borkowski v. Borkowski, 39 N.Y.2d 982, 387 N.Y.S.2d 233, 355 N.E.2d 287 (1976). A complaint that merely alleges fraud without alleging any other morally culpable or gross conduct will be dismissed. Zaretsky v. E.F. Hutton & Co., 509 F.Supp. 68, 77 (S.D.N.Y.1981); H & R Hats and Novelties, Inc. v. Citibank, N.A., 102 A.D.2d 742, 477 N.Y.S.2d 9 (1st Dep’t 1983); Janina Travel Bureau, Inc. v. Kalison, 72 A.D.2d 916, 422 N.Y.S.2d 322, 323-24 (4th Dep’t 1979). Viewed in a light most favorable to the plaintiffs, the amended complaint contains allegations of run-of-the-mill fraud involving the intentional misstatement of financial projections and financial reports. The amended complaint does not allege gross or wanton conduct or criminal indifference to civil obligations. An award of punitive damages is inappropriate in these circumstances. That portion of Fox’s motion that seeks to dismiss the punitive damage demand on the third claim is granted.

III. Conclusion

Defendant Fox’s motions to dismiss the first, fourth and fifth claims and to dismiss the punitive damage claim arising out of the third claim are granted. Fox’s request for an order requiring the plaintiffs to re-plead their damage demand in the third claim is denied.

SO ORDERED.

      . The amended complaint also names as a defendant Jerry Harrison, who allegedly so dominated and controlled Jerry Harrison & Associates as to make it his alter ego. Hereinafter, we refer to Jerry Harrison and his company collectively as "Harrison.”

      . ITP admits that the joint venture failed to obtain some clearances of musical rights. Amended Complaint ¶ 17. However, it maintains that that failure is not material to the violations of law alleged in the amended complaint.

      . Neither the original complaint nor the amended complaint was served on defendant Harrison.

      . In discussing its first claim, ITP argues that Fox should not have remitted the joint venture’s funds to Harrison and that Fox is liable for improperly favoring one co-venturer.over another. Plaintiffs' Memorandum in Opposition at 8-10. Those arguments do not bear on the viability of the first claim, which does not include the above-noted allegations.

      . According to Rule 17 of the Federal Rules of Civil Procedure, “the capacity of a partnership ... to sue or be sued is determined by the law of the state in which the district court is sitting." 6 C. Wright & A. Miller, Federal Practice and Procedure § 1564 at 740 (1971). Since, under New York law, a partnership and a joint venture are treated identically, see infra p. 1536, the Court finds (in the absence of any evidence to the contrary) that New York law controls the plaintiffs’ capacity to bring this action.

      . Although a joint-venturer may sometimes sue a third person in its own behalf, see, e.g., Steinberg v. Noyes, 257 A.D. 866, 12 N.Y.S.2d 722 (2d Dep’t 1939) (joint venturer may sue third-party who induced coventurer to commit fraud against plaintiff); 16 N.Y.Jur.2d § 1594 (1981) (”[t]hird parties may be required to account for any property they received or diverted with knowledge or notice that it belonged to a joint venture or with knowledge or notice concerning the interest of the particular parties in the transactions”), a venturer who simply seeks an accounting and recovery on the venture's behalf may not.

      . Whether a factor weighs for or against granting of standing depends on how it is stated.

      . Although Cerra’s alleged injury is not a direct consequence of the alleged antitrust violation, it too occurred by virtue of conduct that the antitrust laws were assertedly intended to prevent.

      . The plaintiffs direct our attention to Schlottman Agency, Inc. v. Aetna Casualty and Surety Co., 70 A.D.2d 1041, 417 N.Y.S.2d 561 (4th Dep't 1979), and Eagle Spring Water Co. v. Webb & Knapp, Inc., 236 N.Y.S.2d 266 (Sup.Ct.N.Y.County 1962). These decisions held that a complaint may survive a motion to dismiss for failure to state a claim under the Donnelly Act if it generally alleges "that the tendency of the alleged arrangement or combintation will be or has been to lessen competition in the relevant market." Schlottman Agency, Inc., supra, 417 N.Y.S.2d at 562. This statement runs counter to State v. Mobil Oil Corp., 38 N.Y.2d 460, 381 N.Y.S.2d 426, 344 N.E.2d 357 (1976). In deciding a motion to dismiss for failure to state a claim, the Court of Appeals in that case examined the anti-competitive impact of the particular practice alleged. State v. Mobil Oil Corp. continues to state the law in New York. Moreover, even if the cases cited by the plaintiffs were applicable, they would not save the amended complaint, which does not satisfactorily delineate the market in which competition was impaired.

      . The defendants reiterate their objections based on standing, antitrust injury, and failure to allege the requisite agreement. The standing and antitrust injury analyses under the Donnelly Act mirror those under the Sherman Act. Therefore, Fox’s objections to ITP’s standing and injury as they relate to the Donnelly Act claim. See supra pp. 1537-38. Since the lacks both prerequisites to a viable Donnelly Act claim. See supra pp. 1537-1538. Since the language in the Donnelly Act requiring a "contract, agreement, arrangement, or combination” is somewhat broader than the comparable Sherman Act language, Harlem River Consumers Cooperative, Inc, v. Associated Grocers of Harlem, Inc., 408 F.Supp. 1251, 1283 (S.D.N.Y.1976), the complaint a fortiori alleges sufficient concerted action under that statute.

      . That the distribution agreement was partly prepared in New York is unimportant. Although this fact might bear on issues of personal jurisdiction or conflict of laws, it says nothing about the economic impact of the scheme.

      . Predictions, as contrasted with misstatements of fact, afford a very shaky basis for asserting fraud.

      . By letter dated July 29, 1985, the Court granted the plaintiffs’ application to amend the complaint to add a claim under the Racketeer Influenced and Corrupt Organization’s Act, 18 U.S.C. §§ 1961-68 (1985). Although the Court does not issue advisory opinions, we cannot help noting that the facts heretofore alleged do not appear to establish a “pattern of racketeering activity.” Sedima S.P.R.L. v. Imrex Co., — U.S. -, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985); Northern Trust Bank/O'Hare, N.A. v. Inryco, 615 F.Supp. 828 (N.D.Ill.1985); Rojas v.

        First Bank National Association, 613 F.Supp. 968 n. 1 (E.D.N.Y.1985).


source: Caselaw Access Project

author: HOLDERMAN, District Judge:

license: Public Domain

text:
    AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, Kathryn Giuntoli, and Joan Markley, Plaintiffs, v. CITY OF ST. CHARLES and Fred T.L. Norris, Defendants.
    No. 85 C 09917.
    United States District Court, N.D. Illinois, E.D.
    Dec. 5, 1985.
    Lowell E. Sachnoff, Jane M. Whicher, Fay Clayton, Jeffrey E. Stone, Sachnoff Weaver & Rubenstein, Ltd., Chicago, 111., for plaintiffs.
    Jack M. Siegel, William R. Warnock, Siegel & Warnock, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

HOLDERMAN, District Judge:

This case pi’esents the difficult and sensitive issue of whether the Establishment Clause of the First Amendment prohibits the City of St. Charles, Illinois from including an illuminated latín cross in its annual Christmas lighting display. The lighting display has been a part of St. Charles’ Christmas celebration for more than fifteen years.

The plaintiffs, two St. Charles’ residents and the American Civil Liberties Union of Illinois, filed this suit challenging the City’s annual practice of displaying the illuminated cross. Plaintiffs seek declaratory and injunctive relief prohibiting St. Charles from displaying the illuminated cross on City property. The defendants, the City of St. Charles and its Mayor, Fred T.L. Norris, sued in his official capacity, deny that the lighted cross violates the United States Constitution.

This matter was first presented to the Court on November 27, 1985 by motion of the plaintiffs for a temporary restraining order and preliminary injunction. On the same day, the defendants, through their counsel, sought additional time to respond to the motion and voluntarily agreed not to display the illuminated cross until the hearing could be held and the Court had the opportunity to rule on the question. The hearing was held on December 2, 1985.

I. The Setting and the Structure

St. Charles is located along the Fox River in Kane County, Illinois and has a population of approximately 18,800 people. According to the testimony of its Mayor, Fred T.L. Norris, the City, in an attempt to brighten Christmas spirits and cheer for the residents and tourists of St. Charles, has for more than 15 years sponsored a spectacular Christmas holiday lighting program. As part of this annual lighting program, the City decorates the main thoroughfares of St. Charles as well as the city buildings with lights and ornamentation.

On both Main Street (Route 64) and Illinois Street the City erects six foot lighted Christmas trees that are attached to the top of the street lamps that run parallel to the roadways. The street lamps and the attached Christmas trees are on the public way. St. Charles is situated in the valley of the Fox River and the Christmas trees along Main Street stretch from one side of the valley to the other. The Illinois Street trees are hung in the downtown area and across the Illinois Street Bridge which spans the Fox River.

An integral part of St. Charles’ lighting program is the decorations that adorn the municipal complex. The municipal complex is a six acre plot of land located in the heart of downtown St. Charles. The public buildings located in the municipal complex are the municipal center, the planning and public works building, the fire station, the public safety building and an electrical facility. All the trees in the six acre municipal complex are illuminated with strings of white lights during the holiday season.

At the southwest end of the complex sits the municipal center, a large white marble building that serves as the city hall and local museum. The two story municipal center has a large tower that extends upward for three or four stories. The tower is octagonal in shape and is topped off with a glass pyramid type structure. As part of the lighting program the sides of the tower are illuminated alternatively in green and red lights. The glass top is lighted in blue. The lighting creates a stunning display that can be seen for miles and reflects beautifully off the Fox River which is immediately to the west of the municipal complex. The street-level windows of the municipal center are also decorated and contain animated scenes associated with the holiday season. Finally, mounted along the south wall of the municipal building is a large lighted wreath with a red bow.

To the northeast of the municipal center is the planning and public works building (otherwise known as the city plant and Swanson building). The south wall of this two story structure overlooks a municipal parking lot and is visible from the streets that intersect in front of the municipal complex. This wall is decorated with lighted snowflakes, a lighted snowman and a lighted Santa Claus.

Directly to the north of the planning and public works building and approximately 80 feet from the municipal center is the City’s fire station. The fire station’s east wall is decorated with a lighted wreath and two coach lamps which are illuminated by green and red bulbs. Multicolor lights are also strung along the east and extend around to the south face of the fire station. On the west side of the fire station, facing the Fox River, illuminated snowflakes are attached to the building. A large green illuminated wreath is mounted on the west face of the fire station’s hose drying tower.

To the northwest of the fire station is the public safety building. This structure is also decorated with multicolored lights along its roof line. On the west side of the building and on the shore of the Fox River, a large twenty foot simulated Christmas tree is created with strings of green lights and is topped with a white lighted star.

There is one other decoration that appears in the municipal complex area. It is the reason for this litigation. At issue here is the string of lights attached to a communications tower on the roof of the fire station’s hose drying building. The communications tower is a 35-foot, three-legged, triangular metal structure anchored in concrete on the roof of the two story hose drying tower of the St. Charles fire station. The metal communications tower is used as a television antenna and has an aenometer mounted on it for the purpose of measuring wind speed and direction. The tower also anchors a radio scanning antenna used by the St. Charles police and fire department for mobile communication. Attached to the metal tower, slightly above its midpoint, is a crossbar which runs perpendicular to the tower and parallel to the ground. This crossbar was originally installed in 1965 and was later reinforced in 1969. It served as a ground plane radio antenna from its installation until the mid 1970’s. The crossbar no longer serves any function other than as additional bracing for the metal tower. The cross bar as reinforced is about eighteen feet in width and consists of two “U” shaped pieces of s/4" conduit which have their open ends attached to the tower.

On or about the 1969 Christmas holiday season, the volunteer firemen decided to incorporate the communications tower and the crossbar into the City’s annual lighting program. At that time, the volunteer firemen installed white lights on the tower and crossbar, configuring the lights in such a way as to create the appearance of a latín cross.

For nearly 15 years the City’s annual lighting program went unchallenged. Last year, after the propriety of the City spending public funds to light the cross was questioned by some citizens of St. Charles, a separate meter was installed to monitor the electrical costs associated with the illuminated cross. A private citizen donated the money to pay the $23.65 in electrical costs resulting from the cross being illuminated during the holiday season from Thanksgiving 1984 to January 2, 1985. There are no other expenses associated with the cross because volunteer firemen maintain the lights on their own time and at their own expense.

This year, 1985, plaintiffs challenge through this lawsuit the constitutionality of the illuminated cross formation being displayed on City property, despite the private maintenance and funding of the cross. The plaintiffs object to no other aspect of the St. Charles holiday lighting display other than the illuminated cross on the fire station’s communications tower.

II. Discussion

The legal issue presented by this case requires the Court to draw what the United States Supreme Court has called the “blurred, indistinct, and variable barrier” between that which is allowed and that which is prohibited by the Establishment Clause of the First Amendment to the United States Constitution. Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971). In accordance with the Supreme Court’s approach in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), this Court looks to the Lemon three-prong test for guidance on this sensitive and delicate line-drawing task.

The Lemon analysis poses three inquiries: (1) does the challenged governmental conduct have a secular purpose; (2) is the principal or primary effect of the challenged governmental conduct to advance or inhibit religion; and (3) does the challenged governmental conduct foster an excessive entanglement of government with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111. A negative answer to the first question or a positive answer to either the second or third questions requires the determination that the challenged governmental conduct does not pass constitutional muster.

The Court believes that the conduct challenged here, even when considered as only one part of a municipal Christmas holiday lighting display, fails to pass constitutional muster.

A. Secular Purpose.

In order to withstand Establishment-Clause scrutiny, governmental conduct must be motivated at least in part by secular concerns. Chief Justice Burger, writing for the majority in Lynch, noted that governmental activity has been struck down as unconstitutional under this prong of the Lemon test only when the activity “was motivated wholly by religious considerations.” Lynch, supra, 104 S.Ct. at 1362. In Lynch the majority of the Supreme Court decided that the governmental purposes underlying the display of a creche depicting the birth of Jesus Christ — celebration of the public holiday of Christmas and depiction of the historical origins of the public holiday — were sufficiently secular to satisfy the first Lemon requirement. As Justice O’Connor explained in her concurring opinion:

The evident purpose of including the creche in the larger display was not promotion of the religious content of the creche but celebration of the public holiday through its traditional symbols. Celebration of public holidays, which have cultural significance even if they also have religious aspects, is a legitimate secular purpose.

Lynch, supra, 104 S.Ct. at 1368.

The “purpose” inquiry is complicated in this case by the fact that the challenged symbol in St. Charles’ holiday display is a latin cross, which is “distinctively religious” and “universally regarded as a symbol of Christianity.” Lynch, supra, 104 S.Ct. at 1370 (Brennan, J., dissenting); American Civil Liberties Union v. Rabun County Chamber of Commerce, 698 F.2d 1098, 1110 (11th Cir.1983). The City of St. Charles certainly intended the illuminated cross to be a part of its celebration of the Christmas holiday: the lighted cross was only one element of the City’s much larger and award winning annual Christmas display of lights. If Lynch stands for the proposition that a celebratory purpose, no matter how religiously thematic the symbols displayed may be, suffices to pass the first Lemon test, then St. Charles’ actions would not be constitutionally infirm under that test.

This Court hesitates, however, to read Lynch so broadly. As an initial matter, Justice Brennan in dissent specifically noted that the majority’s opinion implicitly left open questions concerning the constitutionality of the display on public property of “distinctively religious symbols such as a cross.” Lynch, supra, 104 S.Ct. at 1370 (Brennan, J., dissenting). Justice O’Con-nor’s concurrence, moreover, stressed the traditional, as opposed to religious, nature of the creche at issue in Lynch. Because of the creche’s traditional association with the Christmas holiday, Justice O’Connor was able to conclude that Pawtucket’s “evident purpose” in including the creche in its annual Christmas display was celebration, and specifically not “promotion of the religious content” of the symbol.

Such a conclusion is not as easily reached here. Unlike the creche, a cross on a building, even during the Christmas season, does not ordinarily conjure up in a viewer’s mind the historical antecedents of the Christmas holiday. Indeed, many Christian church buildings display the latin cross to indicate that the building is in fact a church. For this reason, among others, a cross on a building has come to have religious meaning in our society separate from any religious holiday.

Fred T.L. Norris, Mayor of the City of St. Charles, testified that he considers a cross to be one of the traditional symbols of the Christmas holiday season. Even assuming that Mayor Norris’ perception is shared by the general populace, the Court would find it difficult to take the next step, taken by Justice O’Connor, and conclude that the “evident purpose” in St. Charles’ inclusion of a cross in its Christmas display was not to promote its religious message.

The Court believes, however, that it need not resolve this initial difficult question since the City’s conduct fails to comply with Lemon’s second requirement — that the primary “effect” of governmental conduct be religion-neutral.

B. Principal or Primary Effect.

The second prong of the Lemon analysis, as articulated by Justice O’Connor, considers whether “á government practice [has] the effect of communicating a message of government endorsement or disapproval of religion.” Lynch, supra, 104 S.Ct. at 1368. Governmental endorsement, the Justice explained,

sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

Id. at 1366. Whether or not governmental activity conveys such an endorsement is “a legal question to be answered on the basis of judicial interpretation of social facts.” Lynch, 104 S.Ct. at 1369 (O’Connor, J., concurring). .

The Court is convinced that the primary effect of including an illuminated cross in the City’s annual Christmas display was to place the government’s imprimatur on the particular religious beliefs associated with the latín cross. “Those who believe in the message” of the cross “receive the unique and exclusive benefit of public recognition and approval of their views.” Lynch, 104 S.Ct. at 1373 (Brennan, J., dissenting).

The Court also believes that, unlike a creche displayed in the midst of, among other things, a Santa Claus house, clown, elephant and teddy bear, the apparent governmental endorsement of Christianity is not “negate[d]” by the overall holiday display of lights in St. Charles. Lynch, supra, 104 S.Ct. at 1369 (O’Connor, J., concurring). Unlike a creche, a cross is not commonly found displayed in the midst of purely secular symbols of the Christmas holiday. And unlike a creche which is traditionally displayed only at Christmas time, a cross is displayed year-round on buildings associated with the Christian religion (e.g., churches and parochial schools) for the purpose of conveying the message that the building is associated with the Christian religion.

In short, the City of St. Charles cannot be allowed to illuminate the cross-shaped tower on top of a municipal building because such an action has the effect of conveying an association with or tacit approval of Christianity at the expense of any other religion, agnosticism or atheism. The approval and benefit conveyed by the thirty-five by eighteen foot illuminated cross beaming over the rooftops of St. Charles is more than “indirect, remote [or] incidental____” Lynch, supra, 104 S.Ct. at 1364. A preliminary injunction must issue.

C. Excessive Entanglement.

Having found a constitutional violation, the Court will not engage in a lengthy discussion of the third prong of Lemon, the excessive-entanglement test. The Court will note, however, that plaintiffs’ argument that the record-keeping done by the City of St. Charles to ensure that private funds were used to maintain the lighting hardly seems to constitute the “ongoing, day-to-day interaction between church and state” prohibited by the Constitution. Lynch, supra, 104 S.Ct. at 1364. Whatever involvement St. Charles might have had with the display of the cross, it fell far short of Pawtucket’s purchase, erection and illumination of the creche approved of in Lynch. See also McCreary v. Stone, 739 F.2d 716, 725 (2d Cir.1984), aff'd by an equally divided Court, — U.S. -, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985).

III. Conclusion

The first guaranty of the Bill of Rights to the United States Constitution is freedom from any “law respecting an establishment of religion, or prohibiting the free exercise thereof____” It is a foundation of our country that religion be an individual and voluntary exercise. When a governmental body adorns a public building with a religious symbol so universally identified as a symbol of one religion as is the illuminated cross on the St. Charles fire station, it exceeds the boundaries of neutral accommodation of religion. The Establishment Clause prohibits such conduct.

As well meaning as the city fathers of St. Charles may be in their holiday lighting display, the illuminated cross on the fire station tower has the effect of unconstitutionally embracing Christianity beyond the allowable limits of the First Amendment.

IT IS THEREFORE ORDERED for the reasons stated herein that the City of St. Charles is enjoined from illuminating the configuration of lights forming the shape of a cross on the communications tower attached to the roof of the St. Charles fire station pending a final adjudication of this action. Due to the extraordinary circumstances of this case, including the public-interest nature of plaintiffs’ position, the Court in its discretion deems that the proper security to be posted by plaintiffs is the nominal amount of $1.00 to effectuate this order.

      . The Seventh Circuit has established the criteria that must be met by plaintiffs seeking preliminary injunctive relief. Plaintiffs must establish that they have no adequate remedy at law or will be irreparably harmed if the injunction does not issue; the threatened injury to the plaintiffs outweighs the threatened harm the injunction may inflict on the defendant; the plaintiffs have a reasonable likelihood of success on the merits; and the granting of a preliminary injunction will not disserve the public interest. Roland v. Air Line Employees Ass’n, International, 753 F.2d 1385, 1392 (7th Cir.1985). Plaintiffs have satisfied that burden here. See generally Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

      . To assist the Court the plaintiffs introduced four black and white photographs of the fire station and tower. (PX 1-4). The defendants introduced twenty-nine photographs of the St. Charles downtown and surrounding area as it appears when decorated as described below. (DX 1-29). The defendants also introduced an architect's drawing of the municipal complex area indicating the location of the various buildings. (DX 30).

      . As was held in Fox v. City of Los Angeles, 22 Cal.3d 792, 587 P.2d 663, 150 Cal.Rptr. 867 (1978), which prohibited the defendant city from illuminating a large cross on its city hall to celebrate Christmas and Easter, such conduct by a governmental body unconstitutionally identifies the body with the Christian religion.

      . At the hearing on this matter, counsel agreed that plaintiffs’ motion would be limited to one seeking a temporary restraining order. The Court believes, however, that plaintiffs’ motion is best construed as one for a preliminary injunction since notice was provided to the defendants and an evidentiary hearing on the matter was held. In light of the short time period of the Christmas season, moreover, the Court believes that defendants should be afforded the right to an immediate appeal of this decision if they choose to do so, a remedy available under 28 U.S.C. § 1292(a)(1) if plaintiffs’ pleading is taken as a motion for preliminary injunction.


author: WILLIAM C. LEE, District Judge.

text:
    James M. TINSLEY, Plaintiff, v. GENERAL MOTORS CORP., Defendant.
    Civ. No. F 85-151.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Dec. 6, 1985.

      Josef Musser, Marion, Ind., for plaintiff.
    Howard E. Kochell, Indianapolis, Ind., Thomas M. Shoaff and Michael L. James, Fort Wayne, Ind., for defendant.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on cross-motions for summary judgment. Neither party has filed a responsive pleading to the other party’s motion, although the defendant’s (“GM”) memorandum in support of its motion does address the arguments raised in plaintiff’s (“Tinsley”) motion. For the following reasons, plaintiffs motion will be denied, and defendant’s motion will be granted.

This action was originally filed in the Grant County Superior II Court. Tinsley claimed that GM breached the terms and conditions of its retirement and disability benefits programs, thereby entitling Tinsley to a recalculation of his benefits. GM removed the action to this court on the basis of diversity jurisdiction, although it later pointed out that the controversy is in fact governed by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq., which would be a second basis for removal. Both parties now move for summary judgment.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Thus, summary judgment serves as a vehicle with which the court “can determine whether further exploration of the facts is necessary.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975).

In making this determination, the court must keep in mind that the entry of summary judgment terminates the litigation, or an aspect thereof, and must draw all inferences from the established or asserted facts in favor of the non-moving party. Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985). The non-moving party’s reasonable allegations are to be accepted as true for purposes of summary judgment. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1218-19 (7th Cir.1984). A party may not rest on the mere allegations of the pleadings or the bare contention that an issue of fact exists. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See also Atchison, Topeka & Santa Fe Railway Co. v. United Transportation Union, 734 F.2d 317 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222 (7th Cir.1983). See generally C. Wright, Law of Federal Courts, § 99 (4th ed. 1983); 6 Moore’s Federal Practice, § 56.15 (2d ed. 1984).

Thus, the moving party must demonstrate the absence of a genuine issue of material fact. Even if there are some disputed facts, where the undisputed facts are the material facts involved and those facts show one party is entitled to judgment as a matter of law, summary judgment is appropriate. Egger v. Phillips, 710 F.2d 292, 296-97 (7th Cir.1983); Collins v. American Optometric Assn., 693 F.2d 636, 639 (7th Cir.1982). See also Bishop v. Wood, 426 U.S. 341, 348, 348 n. 11, 96 S.Ct. 2074, 2079, 2079 n. 11, 48 L.Ed.2d 684 (1976).

Based on these principles, the relevant facts appear to be as follows. Tinsley began working for GM at its Marion, Indiana plant on September 24, 1956. On March 1, 1965, Tinsley began working in a “Code 5” salary classification job, with a then base monthly salary of $625.75. He remained a Code 5 employee until January 1, 1982, enjoying a slow but steady increase in his monthly base salary so that by January 1, 1982 the monthly base salary was $2,033.00. On January 1, 1982, Tinsley was transferred to a Code 4 salary classification job, and his monthly base salary declined to $1,850.00.

On March 8, 1982, Tinsley applied for Sickness and Accident benefits under GM’s insured welfare benefit plan for classified salaried employees. Under the terms of the welfare benefit plan, the Sickness and Accident benefits, as well as an Extended Disability Benefit Insurance program, are part of a group disability insurance policy issued by the Metropolitan Life Insurance Company. The welfare benefit plan also mandates that GM serve as Plan Administrator, a fiduciary position.

Under the welfare benefit plan, a classified salaried employee with over ten years of service can receive Sickness and Accident benefits equal to “75% of his monthly base salary” for up to twelve months, commencing after a seven day waiting period. In addition, GM has a salary continuation policy which pays the employee’s full salary during the seven day waiting period, and then for a period of twenty-five weeks pays an additional contribution of 25% of salary, so that the employee receives his full monthly base salary.

The welfare benefit plan also provides for Extended Disability benefits of 60% of “monthly base salary” from the time the Sickness and Accident benefits expire until the employee reaches age sixty-five provided the employee is medically qualified. The amount of Extended Disability benefits can be reduced by certain benefits payable under a separate GM retirement plan.

When Tinsley applied for Sickness and Accident benefits on March 8, 1982, the seven day waiting period began, and he was paid his full salary, based on the $1,850.00 monthly base salary he had been receiving since his January 1, 1982 transfer. From March 15, 1982 until March 13, 1983, Tinsley received Sickness and Accident benefits of $1,388.00, or 75% of his $1,850.00 Code 4 monthly base salary. During the twenty-five weeks commencing on March 15, 1982, Tinsley also received salary continuation payments which brought his monthly pay up to $1,850.00.

In March, 1983, Tinsley sought and was awarded Extended Disability benefits in the amount of $1,110.00, which was based on 60% of the $1,850.00 Code 4 monthly base salary, reduced by certain retirement benefits Tinsley was receiving.

Tinsley argues that the benefits calculation was incorrect because GM used the monthly base salary Tinsley was being paid at the time he applied for Sickness and Accident benefits ($1,850.00) instead of the $2,033.00 monthly base salary he had been paid right before the January 1, 1982 transfer. Tinsley’s complaint and summary judgment motion are premised on an alleged ambiguity concerning the term “monthly base salary” as used in a handbook which summarizes GM benefits. Tinsley argues that the ambiguity should be construed against GM under principles of state contract law, and that the term should be interpreted to mean “average monthly base salary,” which Tinsley claims is the $2,033.00 figure paid him in his last months as a Code 5 employee. GM’s motion for summary judgment seeks to justify its use of the $1,850.00 figure, by arguing that (1) its interpretation, as a fiduciary, of a welfare benefit plan provision must be upheld unless arbitrary and capricious, and (2) that no ambiguity exists as to the meaning of the term “monthly base salary.” The court begins by examining the applicable law, and then the merits of GM’s two arguments.

Governing Law

According to the provisions of ERISA, an employee welfare benefit plan which provides benefits for sickness, accident or disability is governed by ERISA. 29 U.S.C. § 1002(1). Page 49 of the GM Employee Handbook (upon which Tinsley relies for his claimed ambiguity) states that the Sickness and Accident and Extended Disability programs fall under ERISA, and that conclusion is clearly correct in light of 29 U.S.C. § 1003(a). Even Tinsley admits the applicability of ERISA, as he seeks attorneys fees under 29 U.S.C. § 1132. Thus, this court must look to ERISA for the controlling principles of law in this case.

Title 29, United States Code, § 1144 provides that

(a) Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supercede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title ...
(c) For purposes of this section:
(1) The term “State law” includes all laws, decisions, rules, regulations or other State action having the effect of law, of any State.

This provision was clearly designed to preempt state law. Jung v. FMC Corp., 755 F.2d 708, 714 (9th Cir.1985); Helms v. Monsanto Co., Inc., 728 F.2d 1416, 1419-20 (11th Cir.1984); Peckham v. Bd. of Trustees of the International Brotherhood of Painters, 719 F.2d 1063, 1065 (10th Cir.1983). Although not all-encompassing, this preemption is quite broad, Blau v. Del Monte Corp., 748 F.2d 1348, 1356 (9th Cir.1985); Lane v. Goren, 743 F.2d 1337, 1339 (9th Cir.1984), and includes decisional law. Jung, 755 F.2d at 714; Helms, 728 F.2d at 1419-20. Courts have held that ERISA preempts causes of action based on breach of contract. Blau, 748 F.2d at 1356; Lafferty v. Solar Turbines International, 666 F.2d 408 (9th Cir.1982). See also Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1215-16 (8th Cir.), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981) (ERISA preempts common law claim of tortious interference); Francis v. United Technologies Corp., 458 F.Supp. 84, 86 (N.D.Cal.1978) (ERISA preempts state community property law). Thus, Tinsley’s claim of breach of contract, and his attempt to apply common law principles of contract construction to the alleged ambiguities in the Employee Handbook, are inappropriate in this case. The court must consider Tinsley’s claim in light of the principles of ERISA.

Under ERISA, a participant in or beneficiary of an employee welfare benefit plan may bring an action to recover benefits due him and to clarify his future rights to benefits. 29 U.S.C. § 1132(a)(1)(B). Tinsley’s suit must be treated as one filed under this provision.

GM offers two basic grounds for summary judgment. The first is that GM, as a fiduciary administering the two benefit programs at issue here, did not act in an arbitrary or capricious manner in calculating Tinsley’s benefits, and thus its interpretation of “monthly base salary” cannot be overturned. The second ground for summary judgment is that there is no ambiguity in the term as used in the welfare benefit plan. The court considers each of these grounds in turn.

GM’s Performance as Plan Fiduciary

GM is the administrator of the employee welfare benefit plan at issue here by virtue of the fact that it is the named fiduciary of the plan. 29 U.S.C. § 1002(16)(A). GM is therefore a fiduciary, 29 U.S.C. § 1002(14)(A), and shoulders the burden for performing the fiduciary duties of 29 U.S.C. § 1104, including the duty to act “solely in the interests of participants ... and ... in accordance with the documents and instruments governing the plan----” In effect, Tinsley’s suit claims that GM’s interpretation of “monthly base salary” for purposes of computing Tinsley’s benefits violated GM’s fiduciary duty.

A federal court reviewing a decision of a plan trustee or fiduciary must uphold the trustee’s decision unless it is arbitrary and capricious in light of the language of the plan. Berg v. Bd. of Trustees, Local 705, 725 F.2d 68, 70 (7th Cir.1984); Wardle v. Central States, Southeast and Southwest Areas Pension Fund, 627 F.2d 820, 824 (7th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981); Reiherzer v. Shannon, 581 F.2d 1266, 1272 (7th Cir.1978). If the rules or the plan are susceptible to more than one reasonable interpretation, the court should not substitute its judgment for that of the trustee. Jestings v. New England Telephone & Telegraph Co., 757 F.2d 8, 9 (1st Cir.1985); Jung v. FMC Corp., 755 F.2d at 712; Gaines v. Amalgamated Ins. Fund, 753 F.2d 288, 289 (3d Cir.1985); Reiherzer, 581 F.2d at 1272.

The language of the welfare benefit plan defining Sickness and Accident benefits uses the phrase “75% of monthly base salary” in setting forth the formula for such benefits, while the Extended Disability provisions use “60% of monthly base salary.” GM interprets this language to mean “the monthly base salary being paid at the time benefits are first requested.” There is nothing arbitrary or capricious about this interpretation for at least three reasons. First, the uncontested affidavit of Alan C. Benden, Assistant Director of Life and Disability Insurance for GM, establishes that GM has so interpreted “monthly base salary” since benefits were first made available under the welfare benefit plan. A consistent interpretation of a plan provision tends to negate inferences of arbitrariness and capriciousness. Second, other language in the plan indicates that “monthly base salary” is not an average, but is the current base salary received by the employee. In Part V of the Group Insurance Certificate issued by Metropolitan Life Insurance Company, attached as Exhibit A to the Benden affidavit, the plan provides:

Any increase in the amount of the Employe’s insurance due to a change in monthly base salary ... or salaried position classification shall become effective on the date of such change in the case of a change in monthly base salary or salaried position classification ... Any decrease in the amount of the Employe’s insurance due to a change in monthly base salary ... or salaried position classification shall become effective on the first day of the calendar month next following the date of such change ... provided the Employe is actively at work on such first day____

If the phrase “monthly base salary” was intended to mean “average monthly salary,” this plan language concerning the time that changes in benefits amount take place would be largely superfluous. The exhibits attached to the affidavit of Doris Gross, Supervisor of Salary Personnel Administration at GM’s Marion, Indiana plant, exhibit clearly that Tinsley enjoyed a steady increase in salary over the twenty-five years he worked at GM. Because he was paid at different rates during different time periods, Tinsley’s “average monthly salary” would vary with each , pay check, as the numbers which produce the average-would always change. Thus, an employee’s benefits would change every pay day. Why, then, would the plan state the obvious concerning increases in the amount of benefits? If, however, the phrase “monthly base salary” means the monthly base salary being paid at the time the employee applies for benefits, as GM suggests, then a plan provision governing the time when benefit changes take effect makes more sense, as Tinsley’s employment history indicates that changes in the monthly salary rate less frequently than every pay day.

The third and perhaps most persuasive proof that GM did not act arbitrarily or capriciously is that Tinsley ends up receiving more benefits under GM’s formula than under the proposed “average monthly salary” formula. As GM’s brief points out, Tinsley argues for an average monthly salary formula, but then does not take an average over Tinsley’s many years with GM. Rather, Tinsley uses the $2,033.00 rate he was paid from July 1, 1981 to January 1, 1982. Quite simply, that is not an “average” at all, but rather an attempt to pick Tinsley’s highest salary, which he received for only approximately 1/50 of the time he worked at GM, and get the highest possible amount of benefits. Rather, as the Doris Gross exhibit establishes, Tinsley’s average monthly base salary over his entire time of employment is $937.91, and if the amount of time spent at a given base rate is disregarded so that the various base rates are simply averaged, the average is $1,140.44. If only the time since Tinsley became a Code 5 employee is considered, the average monthly salary is $1,151.58. If only Tinsley’s last sixty months are considered, as required by one of the retirement benefit formulae, the average is $1,700.42. All of these averages are considerably less than the $1,850.00 monthly base figure used by GM in calculating Tinsley’s benefits. By excluding consideration of earlier monthly salary rates, which would have to be included in any “average,” GM’s formula benefits the employee by not penalizing the employee for lower salaries earned in earier years, and thus establishes GM’s performance of its fiduciary duty. It is hard to see how GM can be acting arbitrarily when its formula gives Tinsley more benefits than Tinsley’s formula.

The court therefore finds nothing to suggest that GM’s interpretation of “monthly base salary” in the welfare benefit plan was arbitrary or capricous. Therefore, its interpretation of the phrase, and its application of that interpretation in calculating Tinsley’s benefits, must be upheld.

The Alleged Ambiguity

GM's second ground for summary judgment is that the alleged ambiguity in the plan cited by Tinsley is in fact not an ambiguity at all. Tinsley’s source of the ambiguity is not the plan itself or the insurance policies which define the benefits under the plan. Rather, Tinsley looks to a GM Employee Handbook which describes the benefits available under the Sickness and Accident, Extended Disability, and Retirement plans offered to GM employees.

Tinsley’s reliance on the Handbook is misplaced. On page 1 of the Handbook, in conspicuous italic print, is the following:

This booklet presents general information only and is designed to give you a broad picture of some of the added values of working with General Motors. Any reference to the payment of benefits is conditioned upon your eligibility to receive them. Each of these programs has its own terms and conditions which in all respects control the benefits provided.

At least two courts have stated that an employee cannot rely on language in a descriptive booklet when the booklet contains a disclaimer that the formal text of the plan controls. See Anthony v. Ryder Truck Lines, Inc., 611 F.2d 944, 948 (3d Cir.1979); Higgins v. Carpenters Health and Welfare Fund, 524 F.Supp. 601, 607 (E.D.Pa.1981). The only case which might support Tinsley’s attempt to rely on the Handbook, Gould v. Continental Coffee Co., 304 F.Supp. 1 (S.D.N.Y.1969), was a pre-ERISA case which held that a summary booklet must not be misleading, and that any discrepancy between the booklet and plan must be construed in favor of the employee. However, no discrepancy exists between the GM Handbook and the plan. Both use the same “monthly base salary” language in describing the Sickness and Accident and the Extended Disability benefits of the plan. Therefore, Gould does not apply, and the disclaimer effectively prevents Tinsley from relying on the language of the booklet. Because Tinsley has shown no ambiguity in the terms of the plan itself, he cannot prevail in this case.

Even if the court was required to look to the language of the GM Handbook, it would find no ambiguity. Tinsley bases his claim of an ambiguity to the fact that the term “monthly base salary” is used at pages 29 and 30 in describing the benefits for sickness and accident and extended disability respectively. The ambiguity allegedly arises because the terms “maximum monthly base salary,” “average monthly base salary” and “final monthly base salary” are used in pages 13, 14, 15 and 17 in describing various retirement benefits. However, Tinsley is attempting to compare apples and oranges by trying to compare the formulae for computing sickness and accident and/or extended disability benefits (the benefits at issue in this case) with the formulae for computing various retirement benefits. There is no ambiguity here; the modifiers “maximum,” “average” and “final” clearly make the number to be used in the retirement benefit calculation different from the number in the sickness and accident and extended disability benefit calculations. Because the Handbook uses the same language as the plan in describing the benefits at issue here, Tinsley’s claim of an ambiguity completely lacks merit.

The extent to which Tinsley has stretched to make a case where none can be made becomes clearer upon close examination of the Handbook itself. While Tinsley may have parsed through the Handbook looking for references to “monthly base salary” without regard to the context in which they appear, he apparently missed the clear example of how disability payments are made which appears on page 33:

An employee age 37 earning a base salary of $2,000 per month with 11 years of service who becomes totally and permanently disabled would receive:
Salary continuation and sickness and accident benefits equal to $2,000 per month plus cost of living allowance for the first 6 months.
Monthly sickness and accident benefits of $1,500 (75% of salary) for the next 6 months, followed by:
Monthly extended disability benefits of $1,200 (60% of salary) until age 65. This amount would include disability benefits from other sources such as Part A and Part B supplementary retirement benefits and Social Security disability insurance benefits. Any Part B primary retirement benefits would be in addition.
Monthly total and permanent disability benefits payable for life under the Retirement Program.
Entire account balance under the Savings-Stock Purchase Program and the Employe Stock Ownership Plan.

This example makes two points clear: (1) the employee’s current monthly base salary is used to compute benefits, not some “average;” and (2) monthly total and permanent disability benefits under the Retirement Program, as well as the Part A and Part B retirement benefits used in calculating extended disability benefits, are separate from (and therefore different from) Sickness and Accident and Extended Disability benefits, so that formulae for computing retirement benefits (and their component parts) cannot be compared. These two points clearly establish that Tinsley’s interpretation of the Handbook and the various benefit formulae is incorrect, and that GM’s interpretation is consistent with the Handbook and the plan. Therefore, GM is entitled to judgment as a matter of law.

For the reasons stated above, plaintiff’s motion for summary judgment is hereby DENIED, and defendant’s motion for summary judgment is hereby GRANTED.

      . Tinsley apparently believes that the formulae for retirement benefits are relevant because the extended disability benefits subtract certain retirement benefits from the "60% of monthly base salary” figure. However, the fact that retirement benefits are ultimately subtracted from the disability benefits does not mean that there must be any connection between the factors in the equation. Tinsley has offered absolutely no reason why the formulae should be considered “related,” or why use of "monthly base salary” in one place and "maximum,” “average” or “final monthly base salary" in another is in any way ambiguous when these phrases are describing different things.


author: SUSAN H. BLACK, District Judge.

text:
    Sylvester HAYES and Mamie Lue Hayes, his wife, Plaintiffs, v. WILH WILHELMSEN ENTERPRISES, LTD., a foreign business corporation, Partrederieni “Takara”, a foreign business organization, and Nissan Motor Car Carrier Co., Ltd., a foreign business organization, Defendants.
    No. 82-695-CIV-J-14.
    United States District Court, M.D. Florida, Jacksonville Division.
    Dec. 6, 1985.
    Gregory Johnson, Richard G. Rumrell, Rumrell & Hunt, P.A., Jacksonville, Fla., for plaintiffs.
    George D. Gabel, Jr., Wahl and Gabel, Jacksonville, Fla., for defendant Nissan.
   OPINION

SUSAN H. BLACK, District Judge.

Background

This case came on upon the Motion For Reconsideration Of Order Denying Motion For Summary Judgment of Nissan Motor Car Carrier Company, Ltd. [hereinafter “Nissan”], filed herein on September 30, 1985. A hearing was held on the motion on October 25, 1985.

Plaintiff, Sylvester Hayes, was a longshoreman who allegedly sustained an injury on July 5, 1979, while unloading cargo from the vessel “Takara.” He commenced this action for damages against the vessel owner, the vessel manager, and the time charterer.

Nissan bases its motion for summary judgment on its status as a time charterer of the vessel. The facts relating to the plaintiff’s accident are not in dispute for the purpose of this motion. The only issue for the Court’s determination is whether Nissan, as the time charterer, is liable for the plaintiff’s accident.

FINDINGS OF FACT

At the pretrial conference held October 10, 1985, plaintiffs and Nissan stated that they would provide stipulated facts relevant to the motion. In accordance with that understanding, the parties filed the following Stipulated Facts For Purpose Of Motion For Summary Judgment on October 16, 1985.

1. Plaintiffs are citizens and residents of Jacksonville, Duval County, Florida.
2. Wilh Wilhelmsen Enterprises, Ltd. and Partrederieni Takara are business organizations, existing under and by virtue of the laws of Norway.
3. Nissan is a business organization existing under and by virtue of the laws of Japan.
4. At all times material hereto, Partrederieni Takara owned the vessel “Takara,” which was a bulk carrier, converted to a car carrier in 1977.
5. At all times material hereto, the vessel, “Takara,” was time chartered to Nissan, pursuant to a Time Charter dated December 21, 1977, a copy of which is attached hereto as Exhibit “A” and by reference made a part hereof.
6. On July 5, 1979, plaintiff, Sylvester Hayes, was employed by Strachan Shipping Company as a longshoreman to drive vehicles off the “Takara,” which was docked at Blount Island in Jacksonville, Florida. The vessel was tied up at the dock at 0120 on July 5, 1979. By 0130, the hydraulically-operated cargo doors of the vessel were opened. Opening the doors was accomplished by use of a hydraulic system in which pressure is applied from hydraulic pumps at the focs’l which must be started by a mate, and pipes are closed to allow the pressure to build up. The cargo doors are operated by buttons located at each door. In order to release the pressure after opening the doors, the mate must return the focs’l to turn off the pumps and open the valves. The time charterer, Nissan, contracted with Strachan Shipping Company as its stevedore to accomplish discharge of the vehicles on behalf of Nissan and paid for their services. The longshoremen employed by Strachan came on board the vessel sometime between 0800 and 0820.
7. While performing his duties as a longshoreman on July 5, 1979, plaintiff Hayes boarded the “Takara” and slipped in hydraulic fluid which was on the entry deck of the vessel just inside the door.
8. The hydraulic fluid in which the plaintiff slipped came from the hoses of the hydraulically-operated cargo doors of the vessel, and not from any of the cargo of vehicles.
9. While not contained in the Stipulated Facts, Nissan agreed at the hearing that the Court could assume, for the purpose of summary judgment, that the fluid leaked from the hoses when the cargo doors were opened and that it was on the deck prior to the longshoremen boarding.

Having considered the facts, the parties’ briefs and memoranda, and the arguments at the hearing, the Court makes the following conclusions of law.

CONCLUSIONS OF LAW

This Court has jurisdiction over the parties and subject matter pursuant to Title 28 U.S.C. § 1332.

The issue in this case is whether under Clause 8 of the time charter, the time charterer is responsible for cleaning up and warning of hydraulic fluid which leaked onto the deck from hoses on the cargo doors when they were opened. Clause 8 of the Timer Charter provides:

That the Captain shall prosecute his voyage with the utmost dispatch, and shall render all customary assistance with ship’s crew and boats. The Captain (although appointed by the Owners), shall be under the orders and directions of the Charterers as regards employment and agency; and Charterers are to load, stow, trim, lash, unlash, and discharge the cargo at their expense under the supervision of the Captain, who is to sign Bills of Lading for cargo as presented, in conformity with Mate’s or Tally’s Clerk receipts.

The Court’s framework for analysis begins with the statute which provides the plaintiff with his cause of action. The Court then determines the division of responsibility between the vessel owner and the time charterer by examining the charter and analyzing the case law. For the foregoing reasons, the Court finds that the responsibility for cleaning up or warning of the fluid rests with the owner and not with the time charterer.

Statute

The 1972 amendments to the Longshore and Harbor Workers’ Compensation Act provide a right of action to longshoremen injured by the negligence of a vessel.. 33 U.S.C. § 905(b)(1978). The term “vessel” includes the vessel’s owner as well as the charterer. 33 U.S.C. § 902(21)(1978); see also Mallard v. Aluminum Co. of Canada, Ltd., 634 F.2d 236, 242 n. 5 (5th Cir.1981), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85.

For the purpose of summary judgment, the parties have stipulated to facts which constitute negligence on the part of the “Takara.” The fluid in which the plaintiff slipped was on the deck prior to the longshoremen boarding. Thus, the Master and crew had a duty to remove the fluid or warn the longshoremen, which they failed to do. This negligence of the master and crew is attributable to the vessel and, therefore, the plaintiff has properly brought this action against the “vessel.” The question to be decided is whether “vessel” in this case refers to the time charterer or the owner. This question is answered by the time charter.

Time Charter

The time charter in question, the New York Produce Exchange form, is widely used and has been construed frequently by the courts. See e.g., Turner v. Japan Lines, Ltd., 651 F.2d 1300, 1306 (9th Cir.1981); Migut v. Hyman-Michaels Co., 571 F.2d 352, 354 (6th Cir.1978); Fernandez v. Chios Shipping Co., Ltd., 542 F.2d 145, 151-53 (2d Cir.1976). While ordinarily the captain and crew are agents of the owner, under clause 8 of the charter they become agents of the time charterer for certain purposes. See Migut, 571 F.2d at 355; Fernandez, 542 F.2d at 151-53.

In Fernandez, a longshoreman was injured when a pallet, which was being used to unload cargo, came apart and spilled cargo on him. The court stated:

When Clause 8 shifts the responsibility of proper discharge of cargo to the charterer, that responsibility includes whatever damage results from improper discharge, whether to the cargo or the personnel unloading it.

542 F.2d at 152. Having concluded that the injury was caused by improper discharge of cargo, the court found the time charterer liable to indemnify the owner under Clause 8.

Under a virtually identical Clause 8, the Sixth Circuit distinguished Fernandez in Migut v. Hyman-Michaels Co., 571 F.2d 352 (6th Cir.1978) (longshoreman died when he fell through an open hatch during loading operations). While not determining “whether or not clause 8 placed operational responsibility for loading and stowing upon the charterer,” id. at 355, the court concluded that the open hatch through which the plaintiff fell was a condition that existed prior to cargo unloading and that the partially uncovered hatch served no purpose of the charterer. Therefore, the liability “resulted from acts or omissions of the captain which were not connected to cargo handling” and the charterer was entitled to indemnity from the owner. Id. at 355.

Similarly, in Camiolo v. Felicitas-Rickmers Line K.G. & Co., 449 F.Supp. 18 (S.D.N.Y.1978), the court distinguished Fernandez by applying the cargo related test. The court stated:

[I]n Fernandez the shift occurred where the injury complained of ‘resulted from improper discharge' of cargo, i.e., from activity within the scope of responsibility accepted by the time-charterer in agreeing to Clause 8. In the instant case the injury is alleged to have come about because of an icy deck, a condition traditionally within the ambit of the shipowner’s duty in a time-charter____ Moreover, this injury was in no way ‘cargo-related’ in the manner of Fernandez, where the plaintiff was injured in the very act of unloading the cargo. There is no reason to extend the holding of Fernandez to shift liability from shipowner to charterer in situations beyond the loading, stowing and trimming of cargo; absent manifest intention otherwise, the traditional division of responsibility between the charterer and the shipowner would continue to obtain if violence is not to be done to their contractual agreement. To the shipowner, by tradition and by contract, falls the duty to maintain decks in a seaworthy condition.

Id. at 20. In accord Warnock v. Daiicha Chou Risen Kaisha, 1983 A.M.C. 1463 (D.Or.1981) (summary judgment for time charterer when plaintiff slipped on fluid on floor of hold while unloading cargo).

In the present case, clause 8 similarly shifts responsibility for cargo operations to Nissan. Accordingly, the Court will apply the cargo-related standard to determine if Nissan is liable for plaintiff’s personal injuries. The fluid on which the plaintiff slipped was hydraulic fluid which leaked from cargo doors. If the fluid had leaked from the cargo of vehicles or if negligent handling of the vehicles damaged the doors so that the fluid leaked, then the charterer might be responsible. However, the parties have stipulated that the fluid did not leak from the cargo nor is it claimed that the handling of the vehicles damaged the doors. The fluid leaked either through the operation of the cargo doors or because of some defect in the hoses which contain the fluid. The cargo doors are part of the vessel’s equipment as a car carrier. The charterer did not bring this equipment onto the vessel for the purpose of transporting the vehicles. The cargo doors are not within the scope of responsibility assumed by the time charterer under clause 8. Therefore, the fluid on the deck was not cargo-related and the Master and crew were not agents of Nissan when they negligently failed to clean up or warn of the fluid.

Plaintiff argues that because it was the custom and practice of the Master to begin discharge as soon as the vessel docked and because the cargo doors had to be opened to discharge the cargo, the Master and crew were agents of the charterer for the purpose of opening the doors. Plaintiff relies on Turner v. Japan Lines, Ltd., 651 F.2d 1300 (9th Cir.1981), which he claims is on point. In Turner, a longshoreman was standing on the cargo of plywood, attaching hoisting gear to the top stack, when the stack of plywood tipped and collapsed beneath him. Evidence revealed that there was negligence on the part of a foreign stevedore in shoring the plywood which caused it to collapse under the longshoreman’s weight. A jury found that the master negligently supervised the loading operation and thus there was negligence on the part of the vessel. The court then turned to clause 8 of the time charter to decide if the owner or time charterer or both were liable. The court found the time-charterer liable stating: “[Bjecause plaintiff’s injury was caused by improper loading of cargo, we hold that the Time-Charterer must indemnify the Owner____” Id. at 1306. Thus, Turner is consistent with the interpretation of clause 8 which holds a time charterer liable for cargo-related personal injuries. Turner does not construe the charterer’s responsibility under clause 8 as broadly as plaintiff asserts.

Other provisions in the time charter support the conclusion that the vessel owner is responsible for the cargo doors. Clause 1 of the time charter provides, in pertinent part: “That the Owners shall ... keep the vessel in a thoroughly efficient state in hull, machinery and equipment____” Clause 48 makes the owner responsible for sideparts and ramps used to load and unload vehicles. Clause 65 makes the owner responsible to correct problems of the vessel which delay the longshoremen. Finally, Clause 71 provides, in pertinent part: “The vessel to be suitable for the carriage of such unboxed cars as Roll On Roll Off pure car carrier. If corrective measures are necessary same are to be performed by Owners on their time and their expense.”

While these provisions do not specifically mention cargo doors, the cargo doors are part of the vessel’s equipment and their good-working order is necessary to load and unload the cargo. Under the provisions of the charter, the owner has assumed the responsibility of maintaining the vessel’s equipment so that cargo can be loaded and unloaded. Defects in the cargo doors or problems in their operation, which cause fluid to leak, are the responsibility of the owner. Based on the intention of the parties as disclosed in the time charter, the time charterer did not assume responsibility for cleaning up or warning of fluid which leaked from the cargo doors when they were opened.

For the reasons stated in this Opinion, the Court will, by separate order on this date, enter summary judgment for defendant Nissan.

      . Nissan’s original Motion For Summary Judgment was filed on July 1, 1985, and plaintiffs’ response in opposition was filed on August 7, 1985. In an Order entered September 18, 1985, the Court initially denied the motion because a legible charter was not filed with the Court. See De Coelho v. Seaboard Shipping Corp., 535 F.Supp. 629, 635 (D.P.R.1982). However, on September 30, 1985, Nissan filed the motion for reconsideration, attaching a legible copy of the time charter. On October 10, 1985, plaintiffs filed a response initially opposing the Court’s reconsideration of the motion. Thereafter, at a pretrial conference held October 10, 1985, the parties indicated that they would be able to stipulate to facts for the purpose of summary judgment and requested the Court to rule on the merits of the motion. The Court agreed to reconsider the motion. Nissan’s Supplemental Memorandum of law In Support Of Motion For Summary Judgment and Plaintiffs’ response in opposition were filed on October 21, 1985.

      . Plaintiffs have represented that they have settled with the vessel owner, Partrederieni Takara, and the vessel manager, Wilh Wilhelmsen Enterprises, Ltd. On September 25, 1985, Nissan filed an Answer to the Third Amended Complaint and Cross-Claim for indemnity and contribution against Wilh Wilhelmsen Enterprises, Ltd. and Partrederieni Takara.

      . These facts are only conceded for the purpose of summary judgment. Neither Nissan nor plaintiffs would be bound by these facts should the case proceed to trial.

      . The plaintiffs filed ten additional facts on October 16, 1985, which they requested the Court to consider for the motion. The following are the plaintiffs' Additional Uncontroverted Facts For Purposes of Motion For Summary Judgment to which Nissan has not stipulated:
      1. Wilh Wilhelmsen operated the "Takara" through the Master and crew except during the discharge or unloading procedures when the Master and crew were working for Nissan.
      2. Captain Tolstein Ringsoey, who served as chief officer of the "Takara” on July 5, 1979, was a licensed master and captain for unlimited vessels and tonnages in unlimited waters. Captain Rinsoey (sic) had served as second or third mates and other positions on vessels operated by Wilh Wilhelmsen for twenty-five years. Captain Ringsoey previously served as Captain of the "Takara” in 1978 when Nissan was the time charterer. While being Captain of the "Takara,” Captain Ringsoey became familiar with the Time Charter Agreement between Nissan and Wilh Wilhelmsen (which Agreement is attached to the stipulated facts).
      3. Discharge of the “Takara” began immediately after she was tied up at Blount Island and continued until the vehicles were off loaded. After the "Takara” was tied up at Blount Island, the Master and crew, including Captain Ringsoey, were working for Nissan.
      4. It was the responsibility of the Master and crew to insure that the decks were inspected, cleaned and when there remained hydraulic fluid on the decks before it was cleaned, to warn longshoremen, including Mr. Hayes before Mr. Hayes came on board. These duties were performed while the Master and crew were working for Nissan.
      5. All inspections made by the Master and crew, including Captain Ringsoey, were done while working for Nissan. Moreover, according to Captain Ringsoey if any injury occurred as a result of a longshoreman such as Mr. Hayes slipping on hydraulic fluid on the deck of the "Takara,” Captain Ringsoey's custom and practice with Nissan under these facts would be to contact both Nissan and the owner.
      6. During unloading and discharging of the cargo on the "Takara,” the Master and crew were working for Nissan.
      7. The opening of the cargo doors was part of the discharge or unloading procedure and was done by the Master and crew working for Nissan. The opening of the doors was part of the discharging procedure since the automobiles could not be discharged without the use and operation of the hydraulic cargo doors. 8. Hydraulic fluid which was located on the deck of the "Takara" by the cargo doors could have originated from the cargo doors only during the opening of the cargo doors before the longshoremen, including Mr. Hayes, came on board.
      9. Captain Ringsoey, based upon his custom and previous work experience with Nissan, his custom of working with time charterers, and his knowledge of the Time Charter Agreement, was working for Nissan immediately after the vessel was tied up and all of the vehicles were off-loaded on July 5, 1979.
      10. According to clause 9 of the Time Charter Agreement, if the time charterer has reason to be dissatisfied with the conduct of the Masters or officers, the owner was required to investigate and the owner could change the appointments based upon their dissatisfaction.
      At the hearing on the motion, the Court discussed the relevancy and necessity of each of these additional facts with the attorneys for plaintiffs and Nissan. The Court has considered all the additional facts but many of the "additional facts” are conclusions of law.
      Fact 1 is a conclusion of law which the Court cannot accept as a "fact.” See Turner v. Japan Lines, Ltd., 651 F.2d 1300, 1305-06 (9th Cir.1981).
      Fact 2 merely presents the Captain’s background.
      Fact 3’s first sentence, as attorney for plaintiffs has conceded, is unnecessary. The second sentence is a conclusion of law which the Court cannot accept as a "fact.”
      Fact 4 also contains a conclusion of law. Moreover, the first sentence might not be accurate; it may be the responsibility of the stevedore to inspect for dangers to longshoremen. See Scindia Stern Nav. v. Santos, 451 U.S. 156, 170, 101 S.Ct. 1614, 1623, 68 L.Ed.2d 1 (1981). However, assuming the responsibility was with the Master and crew, the second sentence is a conclusion of law which the Court cannot accept as a "fact.”
      Fact 5’s first sentence is a conclusion of law which the Court cannot accept as a "fact.” The practice of the captain to contact the charterer and owner is not relevant to the motion.
      Fact 6 is a conclusion of law which the Court cannot accept as a "fact.”
      Fact 7's first sentence is a conclusion of law which the Court cannot accept as a “fact.” The second sentence is implicit in the stipulated facts and, thus, is not a necessary addition.
      Fact 8, while not contained in the stipulated facts, has been conceded by Nissan for the purpose of summary judgment.
      Fact 9 is a conclusion of law which the Court cannot accept as a "fact.”
      Fact 10 is unnecessary as the entire Time Charter is already incorporated into the Stipulated Facts.
      Plaintiffs also request the Court to consider the Affidavit of Robert C. Stone, filed herein on October 9, 1985. Mr. Stone is a stevedore manager who stated that based on his experience, the hydraulic fluid should have been cleaned up by the Master or his crew. Mr. Stone further stated that at the time when the Master and Crew should have cleaned up the fluid, they were agents of the time charterer under the charter. According to Mr. Stone, the Master and crew were also agents of the time charterer for the purpose of warning the longshoremen. Mr. Stone’s statements constitute conclusions of law which the Court cannot accept as facts for the purpose of the motion.
      In addition, both Nissan and the plaintiffs have filed on October 25, 1985, and October 16, 1985, respectively, the deposition of Torstein Ringsoey, taken October 15, 1985. The parties have cited excerpts from the deposition in their memoranda and, therefore, the Court has reviewed the deposition and has given it consideration.

      . The Eleventh Circuit, because it adopted the precedent of the former Fifth Circuit, See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), may have adopted an interpretation of Clause 8 of the time charter which is inconsistent with that of the courts which hold a time charterer liable for cargo-related personal injuries. In D/S Ove Skou v. Hebert, 365 F.2d 341, 351-52 (5th Cir.1966), cert. denied, 400 U.S. 902, 91 S.Ct. 139, 27 L.Ed.2d 139 (1970), the court held that clause 8 makes a charterer responsible for the costs of cargo handling, but it does not transfer any operational control from the owner to the charterer. However, this case was decided prior to the 1972 amendments which afford an injured longshoreman a right of action against, among others, a charterer for negligence. Several lower courts have followed D/S Ove Skou v. Hebert even after the 1972 amendments. See Shaw v. South African Marine Corp. and Burnham Shipping Corp. of Monrovia, 1983 A.M.C. 1579, 1580 (E.D.Va.1982); Desormeaux v. Oceans International, et al., 1979 A.M.C. 1962, 1964-65 (W.D.La.1979). Recently, the Fifth Circuit in Mallard v. Aluminum Co. Of Canada, Ltd., 634 F.2d 236, 242 n. 5 (5th Cir.1981), declined to overrule D/S Ove Skou, stating: "In light of Skou, this circuit seems reluctant to find any shift of operational responsibility for personal injuries to the time charterer absent clear language to that effect." Id. However, in Mallard, the court reversed the grant of summary judgment for the time charterer as well as the owner. Thus, it is unclear whether the holding of D/S Ove Skou is still good law and binding precedent in this circuit.