Western Holding Group, Inc. v. Mayagüez Port Commission (611 F. Supp. 2d 149, 2009)

ORDER

AIDA M. DELGADO-COLÓN, District Judge.

Plaintiffs, Western Holdings Group, Inc., Marine Express, Inc. and Corporación Ferries Del Caribe, Inc. (“plaintiffs”), brings suit against defendants, the Mayagüez Port Commission, Dennis Bechara, Alfredo Archilla, Enrique Gómez, William Phiths, Holland Group Port Investment (Mayagüez), Inc., José González-Freyre, Sergio Zeligman, and Antonio Jacobs (collectively, “defendants”). Docket No. 1. In addition to their numerous claims, plaintiffs seek a preliminary injunction. Docket No. 2. Plaintiffs’ request for a preliminary injunction was referred to Chief Magistrate-Judge Justo Arenas (“Chief Magistrate-Judge”) on December 1, 2008, for a report and recommendation. Docket No. 6. On April 17, 2009, after conducting hearings on January 16, 20, 26 and February 6, 2009, the Chief Magistrate-Judge issued a Report and Recommendation (“R & R”) which recommended denying plaintiffs’ motions for preliminary injunction. Docket No. 86. Objections to the R & R were due by May 4, 2009, but none were filed.

I. Standard of Review for Objections to A Report and Recommendation

A district court may refer pending motions to a magistrate-judge for a report and recommendation. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); L. Civ. R. 72(a). Any party adversely affected by the recommendation issued may file written objections within ten (10) days of being served with the report and recommendation. 28 U.S.C. § 636(b)(1). However, “[ajbsent objection by the plaintiffs, [a] district court ha[s] a right to assume that [a party] agree[s] to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985), cert. denied, 474 U.S. 1021,106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Accordingly, absent a proper objection, the court need only satisfy itself that there is no plain error in order to accept an unopposed Report and Recommendation. Pellot Bermúdez v. U.S., Civ. No. 04-1702(DRD), 2006 WL 3007480, *2 (D.P.R. Sept.22, 2006).

II. Discussion/Conclusion

Upon review of the R & R, the court finds no reason to depart from the Chief Magistrate-Judge’s recommendation. Moreover, in light of plaintiffs’ admission that the remedy sought in the preliminary injunction is no longer warranted, and their decision not to file an objection to the R & R, the court ADOPTS the R & R in full (Docket No. 86). Thus, plaintiffs’ request for a preliminary injunction (Docket No. 2) is DENIED.

SO ORDERED.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON MOTION FOR PRELIMINARY INJUNCTION

JUSTO ARENAS, United States Chief Magistrate Judge.

Plaintiffs, allegedly common carriers within the meaning of the Shipping Act of 1984, bring this complaint against the defendants, who are allegedly marine terminal operators, for violations of the Shipping Act of 1984, 46 U.S.C. § 41102(c), violations which include unreasonable tariffs, their unjust, unreasonable and unlawful practices, (Docket No. 1, at 27, ¶ 89), unreasonable refusals to negotiate, and unreasonable discrimination, thus causing undue or unreasonable prejudice or disadvantages to plaintiffs in violation of 46 U.S.C. § 41106(l)-(3). Plaintiffs also allege violation of their Constitutional rights under the Foreign Commerce Clause, the Import-Export Clause, the Tonnage Clause, the right to travel under the Fifth Amendment Due Process Clause, the Taking Clause, the Substantive Due Process and Equal Protection Clauses.

This matter is before the court on Motion for Preliminary Injunction filed by plaintiffs Western Holding Group, Inc., Marine Express, Inc. and Corporación Ferries del Caribe, Inc., on November 25, 2008 (Docket No. 2) against defendants Mayagüez Port Commission and its members, Commissioners Dennis Bechara, Alfredo Archilla, Sergio Zeligman, Enrique Gómez and William Phiths, in their official capacity, and Holland Group Port Investment (Mayagüez), Inc., José Gonzalez Freyre, and Antonio Jacobs, as administrators of the port of Mayagüez. For purposes of the preliminary injunction issue, plaintiffs are foregoing the constitution-based attacks on the defendants’ actions.

The parties are engaged in varying disputes before the Federal Maritime Commission, before this court, and before the defendant Mayagüez Port Commission. Plaintiffs are arguably common carriers and owners of the M/V Caribbean Express, a vessel which operates out of the port of Mayagüez. Plaintiffs operate a ferry service which transports goods and passengers to and from the Dominican Republic, something they have done for the last 15 years. The vessel has a capacity for 1,067 passengers, forty 45-feet containers, and fifty motor vehicles. Due to her particular design, the M/V Caribbean Express can apparently dock only at the port of Mayagüez of all the ports in Puerto Rico. The defendants are the owners and operators of the port of Mayagüez.

On November 14, 2008, the defendants were served with a copy of a verified complaint filed by plaintiffs with the Federal Maritime Commission requesting redress and damages under the Shipping Act. (Docket No. 1, at 23, ¶ 78); Fed.Reg. Vol. 73, No. 233, at 73655. The Federal Maritime Commission is the primary forum for resolving disputes between marine terminal operators and common carriers. In the matter before the Federal Maritime Commission, plaintiffs argue that the defendants have failed to honor the terms of Marine Express’ existing lease, and further contend that their actions constitute violations of the Shipping Act, including unjust, unreasonable and unlawful practices in violation of 46 U.S.C. § 41102(c), and unreasonable refusals to negotiate, unreasonable discrimination and undue or unreasonable prejudice and disadvantages in violation of 46 U.S.C. § 41106(l)-(3). Plaintiffs ask the Federal Maritime Commission to order these defendants to cease and desist from violations of the Shipping Act, that it put in force such practices as the Federal Maritime Commission determines lawful and reasonable and pay plaintiffs reparations of $25,000,000.

Plaintiffs argue before this court that the defendants’ predatory practices have the intention of driving them out of business while having a negative effect on an economically depressed area. The president of Holland Group is also charged with attempting to extortionately extract $600,000 from plaintiffs payable in any manner. Plaintiffs allege that the defendants have locked them out of the cargo operations area, have cancelled the terminal lease contract, have refused to negotiate, have arbitrarily and unreasonably imposed wharfage, demurrage and other penalties, have overcharged docking, and have increased the rent by 833%, all in violation of the Shipping Act of 1984. (Docket No. 2, at 3.) Plaintiffs conclude that the defendants’ stated objective is to prohibit plaintiffs’ vessel from docking at the port of Mayagüez. The defendants on the other hand riposte that plaintiffs have been subsidized by a previously non-profit port operation lacking in fiscal reality and that Holland Group has been willing to negotiate the terms of the new lease agreement but that plaintiffs are entrenched in keeping the old rate, a rate which does not reflect the realities of the expenses of the port. The defendants rely on the recently published tariff governing port operations, and the fact that there is no current valid lease with the plaintiffs.

The focus of the preliminary injunction request and indeed the complaint is to temporarily enjoin the defendants from actions that violate the Shipping Act while the Federal Maritime Commission adjudicates the complaint filed there. This is so because the Shipping Act does not grant the Federal Maritime Commission the authority to issue a preliminary injunction during the pendency of the proceedings before it. To the contrary, the district court is granted such jurisdiction to maintain the status quo while the administrative proceedings are concluded. See 46 U.S.C. § 41306.

At the hearings held on January 16, 20, 26, and February 6, 2009, plaintiffs were represented by Jorge Blasini and J. Ramón Rivera Morales, Esqs., appearing defendants Holland Group Port Investment (Mayagüez), Inc., José González Freyre, and Antonio Jacobs, as administrators of the port of Mayagüez by attorneys José Cando Bigas and Charles Vilaro Valderrábano; attorney Ivonne M. Menéndez Calero, representing the port of Mayagüez, announced a stipulation in relation to the motion for preliminary injunction and other matters, which stipulation was approved on the morning of January 16, 2009. (Docket No. 52.) Comprehensive and thoughtful post-hearing memoranda have been filed by plaintiffs (Docket No. 73, dated February 23, 2009) and participating defendants (Docket No. 76, dated February 25, 2009).

TESTIMONY OF MARIBEL MÁS

Maribel Más Rivera testified that she lives in Mayagüez, has a bachelor’s degree in accounting, has been a licensed C.P.A. since 1993, and holds a J.D. She is the vice-president of the three plaintiff corporations, Marine Express, Inc., Corporación Ferries del Caribe, Inc., and Western Holding Group, Inc. Sixteen years ago, she was part of the group that started Marine Express, which is dedicated to the transport of maritime container cargo between Santo Domingo and Puerto Rico. Corporación Ferries del Caribe began in 1998, and was dedicated to the transportation of passengers and cargo between Santo Domingo and Mayagüez. Western Holding Group owns and charters a ship, the M/V Caribbean Express. It has rented the ship in this case to Marine Express and Ferries del Caribe since 2004. The purchase price for the vessel was $12,800,000. Before Ferries del Caribe started, Marine Express exclusively rented out RORO (roll-on/roll-off) cargo ships, where the containers could go on and off of the ship using trucks. Thus, the containers could leave the ship on their own wheels. Cranes are not required for loading and unloading. The ship itself is a combined type cruise vessel, a hybrid, containing nine floors, five of which are dedicated to passengers. The vessel has all the facilities of a cruise ship. It has 365 cabins or rooms, two restaurants, children and infant playroom areas, duty free shops, a beauty salon, spa, jewelry show, nightclub, orchestra, and a show every night. In short, the vessel has everything a cruise ship has. The rest of the floors of the Caribbean Express contain cargo and passenger cars. While the operation began in 1998, the Caribbean Express began in 2003, under a charter agreement. The vessel was in Europe when chartered and arrived here via its own propulsion. Displacement of the vessel in gross tonnage is 19,292 tons. The ship is 525 feet long, and has a crew of 175, including deck and engine personnel. It has a capacity of 1,067 passengers, as well as 80 cargo containers 20 feet long, referred to as TEU’s, and 50 vehicles. At the closing of the last fiscal year, the Caribbean Express had transported 169,002 passengers, as well as approximately 22,-500 TEU’s, and 18,800 vehicles. The ports of operation are Mayagüez and Santo Domingo, close to San Souci. The travel distance between Santo Domingo and Mayagüez is approximately 160 nautical miles. The Caribbean Express is a Panamanian flag vessel.

Ms. Más has responsibilities in the three corporations, including their establishments, everything related to fiscal and accounting issues, some legal matters, matter related to internal controls and procedures, and human resources issues. Six managers report to her. She handles issues dealing with invoices and accounts. In some matters, accounting is performed by Ferries del Caribe, and in others by Marine Express. Making reference to Exhibit 44 (Worldwide Foreign Tariff), Ms. Más noted that this includes the tariffs applicable to Marine Express, tariffs which are published before the Federal Maritime Commission by the Effective Tariff Management Corporation. At page 1, referring to Worldwide Foreign Tariff, the first line shows Marine Express to be a common carrier before the Federal Maritime Commission, number 0111247. The tariff is where prices are published with different rates for different movements or commodities so that the general public knows what Marine Express’ rates are if they are interested in their service.

Ms. Más referred to Exhibit 45, a bill of lading used by Marine Express for transportation, and noted that it contains the contract on the back part (adverse), something required by common carriers when they ship goods for their clients. Those clients can acquire the bills of lading and prepare them, or the clients ask Marine Express to prepare them, which it does. In general, the bills of lading are used by the public at large who want the product. At the front lower left hand side of the bill of lading, it notes that this document is attached to the carrier’s tariffs published with the Federal Maritime Commission. The bill of lading has to be presented to the Federal Maritime Commission for its approval. This particular bill of lading has been used since Marine Express began operations in 1993. The port of loading portion reflects where the container is loaded on the vessel, which could be Santo Domingo or Mayagüez.

Ms. Más referred to Exhibit 46, a passenger ticket containing the contract of transport. Agencies that sell the ticket or company personnel prepare the ticket. These are offered to the public in general which wishes to use their product. Exhibit 47 is an electronic confirmation from the Federal Maritime Commission, FORM FMC-1, confirming that Marine Express, Inc., is a VOCC (vessel operator common carrier), and is marked on the list as vessel operator common carrier. A person cannot board the vessel without a passenger ticket, nor can a container get on board the vessel without a bill of lading.

Making reference to the facilities at the port of Mayagüez, Ms. Más noted that prior to 2003, they had a lease for the buildings the company uses with the Puerto Rico Ports Authority, and the tariff applied to that contract with the Puerto Rico Ports Authority. In January 2003, they renewed the lease contract for an additional five years. The area under that lease was 129,000 square feet, including areas for offices, a workhouse, warehouse, and, among others, a preferential land area of about 2 cuerdas. The preferential area is a designated zone assigned by the Puerto Rico Ports Authority so the common carrier or maritime agent can accommodate containers for unlimited time without paying an additional charge. The cost for rental for the preferential area is therefore higher than any other part of the port area.

Referring to Exhibit 1, a contract with the Puerto Rico Ports Authority, Ms. Más noted that she signed it in January 2003, representing Marine Express, Inc. Article 1 of the contract makes reference to a land area close to 129,000 square feet. Referring to Exhibit 43, a blueprint of the port of Mayagüez, Ms. Más noted that the yellow highlighter marked the areas leased in 2003 with Puerto Rico Ports Authority. At the lower left of Exhibit 43 is reflected where the ship docks. A part of the port near Gate 4 is rented, as is a section for passenger buses to the right of the middle of the blueprint. There is an area with three offices which they have now, plus 2.9 cuerdas (preferential area) at the upper left of the blueprint, near gate 5. There is a smaller area which is also a preferential area. There are no demurrage charges nor additional charges forthcoming as a result of the use of the preferential area. A demurrage charge is leveled against the common carrier when it exceeds the free time. If one does not have a preferential area, then one is charged with demurrage.

Ms. Más stated that the monthly rent in 2003 was $7,900 plus $600 for water and electrical power, for a total of $8,611, under Exhibit 1, the existing tariff, which is in M-l-5, the Puerto Rico Ports Authority tariff, the tariff applicable to all of the ports of Puerto Rico. Exhibit 2 contains the published tariff or rates of the Puerto Rico Ports Authority beginning in January 2004 (through December 31, 2008), Tariff M-l-6, which rate is applicable to the lease agreement at the port of Mayagiiez.

Ms. Más explained that in August 2004, the Municipality of Mayagiiez created the Mayagiiez Port Commission for the purpose of administering and managing the port. The rent continued under the same terms of the original contract with the Puerto Rico Ports Authority. Plaintiffs paid approximately $9,118 a month, and in August, 2004, they paid the rent to the Mayagiiez Port Commission rather than to the Puerto Rico Ports Authority. Referring to Exhibit 3, Ms. Más noted it is a letter dated August 18, 2004 from the Mayagiiez Port Commission to her firm, notifying that the port was transferred, and all rents were to be paid to the Mayagtiez Port Commission. Seventeen months later, in January 2006, the Mayagiiez Port Commission said they will no longer consider valid the contract in force, although the rent payment was the same previously maintained under the M-l-6 tariff. The Mayagiiez Port Commission let plaintiffs know they terminated plaintiffs’ contract although it was valid until January 2008. They said that if plaintiffs were not in agreement, they had 15 days to leave the premises. Plaintiffs’ response was to oppose the Port of Mayagiiez’ decision, and to note that the contract was in force until January 2008. (See Exhibit 5, letter dated February 13, 2006.)

Referring to Exhibit 6, a letter dated March 22, 2007, Ms. Más noted it was a letter to the Mayagiiez Port Commission. Since more than a year had passed since the previous stated communication, plaintiffs proceeded to spell out their needs. No tariff had yet been published by the Mayagiiez Port Commission, and plaintiffs told them of their needs and suggested that the tariffs of the Puerto Rico Ports Authority be retained. Plaintiffs asked to sign a new contract because their contract would expires in 10 months. Plaintiffs asked for a 15-year contract. Marine Express has been there 16 years and the structure that has been created with the three corporations, Marine Express, Ferries del Caribe, and Western Holding Group, Inc., required a long term contract in order to give continuity to the business because of the cost involved. The Mayagiiez Port Commission did not respond to this request. Exhibit 7 is the draft of a contract sent to plaintiffs by the Mayagiiez Port Commission on April 18, 2007. The draft was not negotiated and plaintiffs were not able to accept it. This contact would place plaintiffs out of the Port of Mayagiiez. The Mayagiiez Port Commission offered 3,000 square feet to handle all of plaintiffs’ operation, cargo and passengers. It allowed for 1,600 square feet for operations and 1,400 square feet for office space. In two cuerdas, they could place a bit more than 20 containers. In 1,600 square feet, they could park about 4 containers. The rent payment under the draft contract reflected about 1,000% rent increase. If the rate were pro-rated, the rent payment would be over $1,000,000, this for the only carrier at the terminal.

Ms. Más sent a letter, Exhibit 8, dated May 8, 2007, to the Mayagüez Port Commission, opposing the proposal because they were taking plaintiffs out of the port of Mayagüez. The letter asked them to consider that plaintiffs were the only company operating there for the last 14$ years, and had direct employment of more than 600 individuals.

In May 2007, Holland Group signed a contract with Mayagüez Port Commission to manage the port of Mayagüez. Exhibit 9, a letter dated May 25, 2007, is signed by José González Freyre, president of Holland Group. It lets plaintiffs know that on May 11, 2007, they had signed an agreement for Holland Group to manage and operate the port, and they were in the takeover phase. The letter said to notify them of any requirements plaintiffs had by July 15, 2007. Ms. Más learned of this agreement through the press on May 11, 2007. On May 30, 2007, Néstor González, plaintiffs’ president, wrote José González Freyre of Holland Group, responding to the May 25 letter, welcoming Holland Group and detailing plaintiffs’ general necessities in the port of Mayagüez. See Exhibit 10.

Exhibit 11 is a letter from Holland Group which threatens plaintiffs in that plaintiffs’ ship will not be permitted to dock, and notes information that there was leakage from the fuel tank used to load plaintiffs’ trucks. Ms. Más denied this. There was no leak of fuel tanks. She explained that a forklift of plaintiffs’ operations had one of its hydraulic lines fall on the surface and there was spillage.

Ms. Más noted that the ground operation is complex and complete. Plaintiffs have 2,000 pieces of equipment. The Caribbean Express makes three to four round trip voyages per week, continuously, dispatching and receiving containers. Furthermore, there is loose cargo which is managed with forklift, and transferred to platforms. They also have special tractors used to move the containers into and out of the vessel. The workshop area is used to continuously verify the containers to assure that they comply with the rules of Puerto Rico public roads and Santo Domingo roads. If those rules are not complied with, plaintiffs will receive a number of fines and this would not allow them to be able to put their equipment to work. Santo Domingo’s regulations are quite different and there is a category of people there that, due to their necessities, pull out lights and cable work from the containers (vandalize) and plaintiffs have to guarantee and verify the equipment within the port. Clients have a considerable volume of equipment. There are 200 clients between Mayagüez and Santo Domingo. Each client has 6, 8 to 12 units. In the port of Santo Domingo, in Mayagüez, and other places, there are more than 2,000 units available. If the equipment is not being used, it would be stored in the preferential area, as well as loose cargo, and cargo on pallets, which, if the pallets are broken, have to be changed to other pallets. That is done with a forklift, and the trash has to be disposed of.

Ms. Más referred to Exhibit 12, a letter dated June 6, 2007 from Holland Group and its president José González Freyre. It is a follow-up to the May 30, 2007 letter where plaintiffs told them of their necessities. In the last paragraph, Holland Group asks plaintiffs to again give them their needs and requirements in the port of Mayagüez. Ms. Más did not know why Mr. González requested this.

Exhibit 13, letter dated June 8, 2007, states that between June and August 2007, the parties could not negotiate. Ms. Más disagrees with this assessment. Rather, there was a 90-day period from the date of signature where Holland Group could not sign contracts with plaintiffs. The letter of June 8 from the Mayagüez Port Commission said that plaintiffs have to negotiate with Holland Group. Thus Ms. Más noted that there is a limbo which lasts two months since plaintiffs could not contract with either Holland Group or the Mayagüez Port Commission. In August 2007, Holland Group took possession of the port, but Ms. Más did not meet with Holland Group. Rather, there was a general cocktail party with Holland Group people and plaintiffs spent time with them at the cocktail party but no contract was discussed. The cocktail party was Holland Group’s celebration for their taking control of the port. Exhibit 14, dated August 10,2007, the date after the cocktail party, is a letter to José González Freyre, president of Holland Group, from Néstor González, plaintiffs’ president, referring to a conversation of August 9, where José González Freyre had said to write down plaintiffs’ needs. Thus, Exhibit 14 details the areas where plaintiffs are needing, and the area size they are needing, including a map so that he could see the area which plaintiffs were referring to. Plaintiffs needed only 11.5% of the total area of the port facility. There were no other users of the ports facilities.

In January 2008, the Puerto Rico Ports Authority contract expired or lapsed and the rent was maintained the same. Plaintiffs thus paid the same rent. In March 13, 2008, Holland Group had plaintiffs receive the tariff rates related to the docking of vessels, effective in 48 hours after delivery time of same. Ms. Más did not review them. There had been hearings in the summer of 2007, as required by law when a tariff is going to be drafted. Plaintiffs asked for a copy and evaluated it. The increases were unreasonable and unjustified, as to some of the items. They were high.

Ms. Más made reference to Exhibit 42 which reflects a series of rent invoices, and copies of plaintiffs’ payments. The first rent invoice is for $9,118.82 a month, an invoice which she paid. Invoice 0158 is for the month of March 2008. For April, 2008, the invoice is for the amount of $9,118.82; for May, the amount of the invoice is $9,118.82, and for June, July, and August, it is the same: $9,118.82. The September invoice, number 0330, is for $9,118.82. That amount was paid. Invoice 0337, dated September 9, 2008 was for $57,478.91, applying the first payment of September as credit. The payment would be approximately $66,600 if no credit were given. There was no previous notification of this increase, and the same was not negotiated.

Exhibit 16, dated September 9, 2008, is from Holland Group to Maribel Más, in which Holland Group states for the first time the rent payments for the Mayagüez port facilities and the costs of utilities. The annual rent became close to $800,000, where $106,000 had been the annual entry. For the first time plaintiffs are informed of these payments, payments which were not negotiated. No tariffs concerning rental were provided to Maribel Más.

For comparative purposes, Ms. Más referred to Exhibit 41, a rental agreement between Puerto Rico Ports Authority and Crowley Liner Services, Inc. At article 1, page 2, the total area rented is 81.1153 cuerdas. Article 2, page 3 shows the term of the lease agreement is 10 years with 2 options of 5 years at Crowley’s option or discretion. At article 5, page 8, the rental for the Terminal in Isla Grande is $165,297.01 monthly for 81.11 cuerdas while Exhibit 16 is $66,597.73 for close to 3 cuerdas. In 2007, plaintiffs paid out $106,000 for utilities including electrical power and water. The increase is about $700,000 or an 833% increase, without utilities. Ms. Más found this totally unreasonable, unjustified and the effect would be that they would be the only shipping company in Puerto Rico paying these rates. Ms. Más referred to Exhibit 17, dated September 10, 2008, a notification to the Mayagiiez Port Commission informing them about Holland Group’s increase in rent, close to an additional $704,000, excluding utilities and asking them to intervene. The Mayagiiez Port Commission did not respond to this letter. Exhibit 18 is plaintiffs’ letter to Holland Group stating that they were not in agreement with the rent of $66,000, telling Holland Group that they were agreeable to sit down and negotiate, and telling them about the Puerto Rico Ports Authority rents paid in Puerto Rico. Exhibit 20, a letter to Holland Group dated September 30, 2008, notifies it of plaintiffs’ opposition to the rental invoice for the month of October. Holland Group responded on October 1 (Exhibit 21) and notified plaintiffs to empty the premises of the workshop and offices and that they would be shutting down the air conditioning system at the terminal and all non-essential services of loading and unloading the vessels and they would be telling United States Customs to leave the port premises. (This would close the operation.) The letter is signed by Tony Jacobs, port director of the Holland Group, and is sent to Maribel Más. Ms. Más noted that if the air conditioning is turned off, it is uncomfortable for the passengers, personnel and United States Customs because they could not work, and the computers are at risk because of the temperature of the computers. If there is no customs service, the vessels could not be received.

Plaintiffs did not reply to this letter in writing. Rather, they called members of the Mayagiiez Port Commission who then coordinated a meeting with Holland Group and plaintiffs on October 2, 2008. Present at that meeting representing the Mayagiiez Port Commission was attorney José Sánchez, Holland Group, represented by José González Freyre, its president, and Sarimila Méndez, and plaintiffs, represented by attorney Antonio Rodriguez from Fiddler & González, Carlos Bayron, Néstor González, president of Marine Express, and Ms. Más. Antonio Jacobs was not there. The meeting began with José González Freyre looking at plaintiffs’ president, saying “The message is clear. I need $600,000 from you. How you’re going to pay, it doesn’t matter.” Néstor González told José González Freyre that the rental for the areas was unreasonable, and asked him why this is necessary, and José González Freyre said “due to services.” Néstor González then said that nothing has been done any differently than during the last 16 years, and José González Freyre repeated “Services. Services,” with no explanation. The meeting lasted two hour.

Considering the demand for the additional $600,000 while not providing any additional services at all, Ms. Más felt uncomfortable and extorted. Trying to reach a negotiation and a conclusion, plaintiffs told José González Freyre that while Holland Group had been at the port 14 months or so, plaintiffs would be disposed to include in the port tariff a $1.50 per passenger fee, which would have amounted to $255,000 per year. Adding this to the tariff increase of January 1, 2009, they would increase income to $416,000. José González Freyre said that he would set up a table close to United States Customs and charge the customer a Customs Access Fee of $3.00 per passenger, prior to their getting on the ship. Plaintiffs’ attorney Carlos Bayron, the Mayagiiez Port Commission attorney José Sánchez, and Ms. Más decided that this could not be done and that the tariff would have to be amended to establish this additional fee. José González Freyre did not agree. It was agreed that plaintiffs’ attorney, Carlos Bayron, would send plaintiffs’ proposal to the attorney for the Mayagiiez Port Commission. José González Freyre said that since there is no agreement, as of the previous day, Holland Group would be invoicing on a daily basis in accordance with a clause allowing for appropriate tariff rates.

On October 3, 2008, plaintiffs started receiving daily invoices, the first for about $6,000 per day, reflecting a fee for equipment at the port. The invoice did not include an inventory of dates of entry, and did not have supporting documentation. (See Exhibit 30, invoice 0357 refer to the tariff 16.6.3.1 in' its second item, and for the amount of $6,083.28.) Referring to Exhibit 15, page 114, use of crane and specialized equipment, Ms. Más noted that plaintiffs have RORO, and do not have cranes. She also noted that vessel owners will be held responsible for violating any of the Port of Mayagiiez’ resolution. Before this, plaintiffs had never been charged for this rate. Item 60.7.2.1 of invoice 0357, is for demurrage in excess of the free time. Five days is the general rule for free time in the tariff, but for cargo coming from overseas, the free time is six days since it has to go through Customs. If plaintiffs pay preferential area rental, the purpose is not to pay demurrage. Ms. Más did not know why Holland Group was charging demurrage since it was not applicable. Similar charges are reflected in other invoices contained in Exhibit 30. Maribel Más wrote Holland Group and said that they disagreed with the invoices and why they disagreed, but also because there were no supporting documents. Plaintiffs did not know what equipment was being referred to.

Plaintiffs made a formal complaint before the Mayagiiez Port Commission for the illegal rate. Previously, they had never complained. Plaintiffs had had a preferential area and their conclusion was that Holland Group had taken away their preferential area. The check for October’s rent was returned to plaintiffs.

Ms. Más referred to Exhibit 22, a letter dated October 8, 2008 from plaintiffs’ attorney Carlos Bayron which he had promised to send to attorney Sánchez of the Mayagiiez Port Commission, with plaintiffs’ proposal to reach an agreement with Holland Group so they could have additional income and leave the rent as it was, competitive with the ports of Puerto Rico. Exhibit 23 is a letter dated October 10, 2008, which plaintiffs sent Holland Group stating that they were not in agreement with the invoices and stating the reason why, that there was a lack of inventory and improper assessment of tariffs. Ms. Más referred to Exhibit 25, a letter dated October 20, 2008, from her to Holland Group’s Antonio Jacobs, which is a followup letter related to the issue of the invoices that had continued coming and which she felt are an improper application of the tariff list.

Ms. Más testified that Thursday, October 23, 2008 was “grave” for plaintiffs’ operation. At about 9:30 A.M., Gate 5, which provides access to the operations area, was closed, and no vehicle was allowed in or out. Thus, plaintiffs could not take the equipment in or out. The marine terminal has five main gates. Gate 5 is where Marine Express’ cargo enters and exits, and it was closed with a lock. A guard was present with instructions not to allow equipment in or out.

Plaintiffs received complaints from their clients. Cargo had arrived Wednesday. While tax and customs releases were acquired, the containers were not permitted to leave the port. In addition, the containers that were arriving that day had to be received and accommodated on the street because plaintiffs could not put them inside the operations area, and if they were inside, they were not able to come out. This gate closure lasted the rest of that day. There was also cargo of third parties which had nothing to do with the parties. Marine Express had made arrangements with large companies in Puerto Rico and Santo Domingo which had large expenses in warehousing and because of the voyage frequency, many of these companies operated their manufacturing cycle in a certain manner and did not have to warehouse products due to plaintiffs’ schedule. Thus, not being able to give them merchandise on the 23rd, this affected their operations also. Ground transportation firms allowed plaintiffs to place buses and containers in their premises at a cost. Plaintiffs have four large Greyhound-like, 48-passenger and 60-passenger buses, which provide transportation from the Mayagüez and San Juan metropolitan area. There was a dedicated area in the port before that, but after October 23, these went to Orlando González’ premises, which are a bit far from the port. Plaintiffs’ employees had to retrieve the buses from these areas. In the port of San Juan, plaintiffs have 2 cuerdas contracted with Puerto Rico Ports Authority, and a small office. It is located next to Pan-American I, in Isla Grande. Plaintiffs pay $25,000 per cuerda per year. This is a preferential area for both and they pay $50,000 a year for five years. The purpose is to allow Marine Express’ clients to drop off or retrieve empty containers there.

Ms. Más noted that Exhibit 26 is a letter dated October 23, 2008 signed by Tony Jacobs to her. It established that the vessel will not be docking unless the operation of docking the ship is prepaid. Before October 23, 2008, once the docking permit was requested, which was 2 or 3 weeks in advance, plaintiffs had 24 hours after docking to pay the invoice, except for Friday operations which were paid on Monday. A docking permit is given by the administrator of the port with the purpose of allowing a ship to enter the port. The vessel cannot come in if there is no docking permit. In the port of San Juan, the procedure is that you can turn in the permit request up to one month in advance. It is not prepaid in San Juan. Plaintiffs also were to get a 5% discount which was for those common carriers which are excellent payers. Before this, plaintiffs never had to prepay for the docking permit.

A second letter dated October 23, 2008, from Tony Jacobs to Marine Express, notifies them that their credit privileges are revoked. They were further notified that there is no negotiation with plaintiffs although they tried to negotiate terms at the meeting of October 2, and on October 8, plaintiffs sent a proposal which was never responded to.

Ms. Más referred to Exhibit 30, invoice 438, reflecting a fee of 28.56 for specialized equipment which had been abandoned. On October 24, 2008, due to the Gate 5 closing problem, plaintiffs called the Mayagüez Port Commission and asked it to intervene because it was unreasonable to operate smoothly during negotiations. Sergio Zeligman and Dennis Bechara agreed by telephone to be with plaintiffs at the port. Mr. Zeligman and Mr. Bechara went to the port. They had talked to Holland Group personnel trying to seek a solution. The operation began normally and plaintiffs had to make prepayment or they would not be able to dock the vessel. While at the Mayagüez Port Commission, plaintiffs started getting another set of invoices from Holland Group. For example, if a container had been in port more than six days, plaintiffs had to make a check for every container to get the container out of the port. Plaintiffs had to pay these invoices, or they could not provide the cargo to the clients. These charges were demurrage, which is when a client exceeded the free time that is notified through the tariff. The client has 10 days under their tariff to return the container empty, and he is then charged demurrage. The normal procedure is net 30 days as terms. If a client has demurrage previously, plaintiffs do not detain or stop them based on that charge. Ms. Más noted that there is a regulation which does not allow delaying the cargo. Ms. Más referred to Exhibit 29, the complaint against Holland Group before the Mayagüez Port Commission due to conditions at the port where there are risks for the operations. One part of the pier or dock which is transited through is sloping; the gutters there have holes since there is excess girth of pavement so that the grills cannot be elevated, and thus the surface turns into a hole. There are no fenders to protect the vessel. If the vessel goes back, it can receive a serious impact with the dock or a vessel.

Ms. Más noted that Exhibit 42, invoice 0351, is for rent for October in the amount of $66,597, forwarded by Holland Group. Invoice 0480, dated October 31, 2008, is for October’s rent for another amount. In other words, there are two invoices for the same concept and same month. The second invoice is for $16,549.90. (Mr. Jacobs later addresses this particular discrepancy.) Ms. Más noted that the difference are the 2 cuerdas of preferential area. The first invoice includes the 2 cuerdas and the second invoice stopped charging for those 2 cuerdas. Invoice number 0583 is for the rent for November in the amount of $14,216.56.

A summary of invoices is reflected in an oversized chart, Exhibit 52, which reflects how the rent varies and also the removed space, as well as the lack of notification to plaintiffs that the preferential area was eliminated. The first nine invoices were paid, but then they received an invoice for the same concept for $66,597.73, an invoice which was for the same area 129,000 square feet (3.55 cuerdas) since the beginning of the year. Plaintiffs were the only user of the terminal. Then, with invoice 480, there was a reduction in rent for October, reflecting the eliminated 2 cuerdas of preferential area. For the first time, parking was invoiced although it is public, and used by federal agencies, passengers, Holland Group personnel, and by visitors in general. On November 30, 2008, the invoice was for $14,216.56, which reflected the difference of 4,000 square feet being eliminated from Marine Express without previous notice. Plaintiffs had not been shown the tariff notice relating to rental, and no assessment of land value had been shown to them. The December rent was never invoiced, nor January 2009. Thus plaintiffs have been consigning the rent in the court for the October through January 2009 rent, based on $9,118.62 per month.

Referring to Exhibit 43, the port of Mayagüez diagram, Ms. Más showed what was taken away (using a red pen). In October, the preferential areas were taken away. In October and November, 2008, the 4,000 square feet in front of the Marine Express’ office was taken away. Plaintiffs have the remaining office, warehouse, Marine Express workshop and the three offices of Corporación Ferries del Caribe. Marine Express was being charged for parking area (1st parking areas on left of the map). Five or six parking spaces are assigned to plaintiffs but outside of that it is a public parking area.

Ms. Más referred to Exhibit 32, a letter dated November 5, 2008, from Tony Jacobs, representing José González Freyre, to plaintiffs and to Maribel Más. The fourth paragraph informs that what she sent on August 10, 2007 was evaluated 14 months later and therefore plaintiffs are getting invoices for September and October. It gives five days to send alternatives, and says that plaintiffs never sent them any. Ms. Más said that was false because on October 8, attorney Carlos Bayron sent proposals. Holland Group informed plaintiffs that negotiations had ended. Holland Group called Nelson González and told him if he wanted to negotiate with the Commission, good luck, and they hung up the phone.

Ms. Más noted that plaintiffs’ previous preferential area is being used for containers that have free time or are released prior to free time. In some parts of the Mayagüez port, sections of a statute of Christopher Columbus, built in Russia and previously stored in Cataño, are placed.

In a letter to Mr. Bechara, president of the Mayagüez Port Commission, dated November 5, 2008 (Exhibit 33), Ms. Más tells him that because of the Holland Group and plaintiffs’ issues, plaintiffs ask the Mayagüez Port Commission for an emergency meeting to explain the situation in the port of Mayagüez.

Exhibit 34 dated November 12, 2008 is a letter by Carlos Bayron to Dennis Bechara, and is a second complaint or followup for wrongful invoices of Holland Group to plaintiffs. On that date, plaintiffs filed a complaint before the Federal Maritime Commission. Exhibit 35 is plaintiffs’ presentation before the Mayagüez Port Commission establishing the situation they had in the Port of Mayagüez and Holland Group’s aggravating conduct and invoices reflecting increases of 833%, as well as additional invoices which are illegal since they did not comply with the tariff and lack supporting documentation. Also complained of was their taking away plaintiffs’ credit line, notwithstanding plaintiffs’ excellent line of credit. Plaintiffs told the Mayagüez Port Commission about the letter they got from Holland Group, taking away plaintiffs’ facilities, telling plaintiffs to leave the office spaces, and threatening to shut off the air conditioning. Plaintiffs reviewed the proposal which was never taken into consideration, and established details to the risk if there was a refusal to allow the docking at the port of Mayagüez. Plaintiffs also related their background in operation for 16 years. Plaintiffs informed them of the filing of a complaint before the Federal Maritime Commission and that if the situation were to continue to be aggravated, they would request an injunction. That was the 13th. On November 14, plaintiffs received letters from Holland Group (Exhibit 36), and a letter from the Mayagüez Port Commission returning to plaintiffs their complaints of improper invoices and that they should send them to Holland Group. Exhibit 37, dated November 14, 2008, is a letter by Tony Jacobs, port director of Holland Group, addressed to Maribel Más. In this letter, plaintiffs are requested to clean area “F”, which is the preferential area, taken away in October. They received an invoice for $1,020 for the cutting of grass where there is no grass.

Ms. Más explained that if a vehicle is not allowed to enter Puerto Rico and authorities decide it cannot enter, or if they seize it, in the past, they would leave the seized vehicle in port and then the authorities later disposed of those vehicles, but with passengers they would leave them and plaintiffs do not have jurisdiction over those vehicles. Plaintiffs would tell the municipality but nobody would take the responsibility for withdrawing them from the port area and they were placed in the preferential area. About a year or one and a half years ago, plaintiffs issued a notarized writ and moved the inventoried vehicles to a private lot and reported this to the police department division of stolen vehicles. Those vehicles are still in the private lot.

The second letter of Exhibit 37, November 14, 2008, is from Tony Jacobs, port director of Holland Group to Maribel Más. It announces the increases in advance (prepayment charge) which they had to provide since October 24, in order to receive the vessel from $6,000 to $7,500 per docking. This covered docking, wharfage and water provided for the vessel exclusively. Ms. Más considered a reasonable amount to be $5,600. They talk about a high season which did not begin on the date they have. Historically high seasons begin Christmas, mid-December to mid-January, and summer, second week of June to first week of August. There might be another high season like Thanksgiving or Lent.

The vessel Caribbean Express has 168 entries per year. Since 1993, it has had 2,500 entries, and has paid in docking charges approximately $1,300,000 per year.

Ms. Más referred to Exhibit 38, a letter dated November 17, 2008, from the Mayagüez Port Commission to plaintiffs. The Commission returned plaintiffs’ complaints so plaintiffs forwarded them to Holland Group. On November 25, 2008, plaintiffs filed this request for injunction.

Ms. Más referred to Exhibit 40, Resolution and Order by Mayagüez Port Commission, in relation to improper invoicing and referring to Holland Group. Then on December 15, 2008, the Mayagüez Port Commission made a ruling concluding that the Commission can fine the defendant an amount per occurrence if it is determined that there are unauthorized charges inconsistent with the regulations.

Ms. Más explained that plaintiffs have about 600 employees. Plaintiffs carry commercial debt of about $16,000,000, and monthly expenses of about $3,000,000. They are currently seeking loans. Ms. Más, a C.P.A., deals with the finance departments of the three companies. She knows the debt through the monthly financial statements. If the vessel has no docking permit in the port of Mayagüez, it has to return to Santo Domingo because there is no other port prepared in Puerto Rico which can receive this type of vessel. If it has to return to Santo Domingo, this has a domino effect, so all the subsequent trips are damaged, and there is damage to the companies plaintiffs deal with, damages caused because they rely on the frequency and regularity of the voyages. Holland Group cannot interrupt plaintiffs’ itinerary. The vessel has to persistently dock at the port of Mayagüez or there would be an impact financially. They could not operate, could not pay their responsibilities, and expenses, and sustain jobs, thus closing the business.

Ms. Más stated that because plaintiffs have no preferential area at Mayagüez, they are operating with much difficulty, and have equipment in different places, in several lots of land, and on the street and therefore that equipment is assuming risks which they did not have before, as well as the additional costs.

Ms. Más explained that Marine Express is the common carrier from Mayagüez to Santo Domingo. Because of the current situation, the employees feel that plaintiffs are not going to have operations in Mayagüez. Ms. Más explained that there is no other user for the port of Mayagüez, and that there are no other ports in Puerto Rico which can receive this type of vessel.

On cross-examination by attorney Cancio-Bigas, Ms. Más emphasized that the position of the company is that the Caribbean Express is a cruise ship that transports cargo; it is a hybrid. Western Holding Group is the owner, and Marine Express operates the vessel. Marine Express is recorded as a common carrier in the Federal Maritime Commission. Ms. Más does not know how the port of Mayagüez classifies the vessel.

Ms. Más explained that plaintiffs pay docking fees, wharfage fees and a special charge for ferry service inbound and outbound. The tariff (Exhibit 15, at 113, § 16.4.1) states fees for passengers of charters for 2008 to be $12 per passenger. Marine Express does not pay this fee. They pay $1.50 per passenger per route. Section 16.5.3 of the tariff says that the fee applies for ferryboats in the port of Mayagüez. This is the one that applies to plaintiffs’ hybrid product although there is no hybrid distinction under sections 16.5.3 and 16.5.4 of the tariff. This is not Ms. Más’ interpretation, but rather, Holland Group making the interpretation. Plaintiffs pay $1.50 per passenger per route.

Holland Group entered into a contract to begin operating the port on May 7, 2007 and in August 2007 began managing the port.

Referring to Exhibit 20, Ms. Más’ letter in response to the invoice for $66,597.73 from Holland Group, she noted that plaintiffs’ position is reflected there and they are not in agreement with the amount invoiced. While the contract with Puerto Rico Ports Authority concluded and expired on January 28, 2008, plaintiffs maintained paying $9,118.00 a month. Plaintiffs had tried to negotiate and initiated attempts and yet wishes to negotiate. On September 30, 2008, there was no lease agreement of Puerto Rico Ports Authority. Plaintiffs have been paying pursuant to an implicit renewal “tacita reconducción.” Ms. Más reiterated, referring to Exhibit 20, that until defendants agree to sit down and negotiate, plaintiffs would continue to pay that rent.

Ms. Más reviewed Exhibit 21 with her lawyer, a letter dated October 1, 2008, sent to plaintiffs by Holland Group in 2008 giving them instructions to vacate the offices and workshop, and also stating, in the first paragraph, that plaintiffs had rejected the invoice for $66,000. It also affirmed that plaintiffs had told Holland Group there was no contract with them. Plaintiffs had told them they had not negotiated a new contract with Holland Group. In the second paragraph, the letter noted that Holland Group would be invoicing port servicing strictly by the tariff published by the port. Mr. Jacobs stated he would cancel the invoice, and Ms. Más understood that he had canceled that invoice. Holland Group noted that it will not accept any rent to maintain the Puerto Rico Ports Authority contract which was rejected, and would not keep the contract active. This was rejected by Mayagüez Port Commission and Holland Group, which resulted in Maribel Más’ letter of September 30 regarding the implicit renewal. Thus Holland Group was stopping the implicit renewal, saying there is no contract.

Ms. Más explained the “tacita reconducción,” that the rental rate continued month to month, or according to the contract term, or until the landlord states that the contract is eliminated. Nevertheless, Holland Group said plaintiffs should evacuate the workshop shed and offices immediately since what takes place there is not consonant with the shipping business. If this were to happen, the air conditioning would be eliminated and the United States Customs would have to exit the premises. Holland Group never eliminated the air conditioning but it was out of order, damaged. It has since been repaired, and was not intentionally discontinued. Holland Group asked the United States Customs to start paying rent but Ms. Más did not know if they are paying rent. She stated that no services had been discontinued, because upon plaintiffs’ requesting the injunction, all threats stopped. The threats included the closing of the port on October 23, and a request for payment for cutting the grass on November 14, as well as inapplicable demurrage charges. She believed these were retaliation for not accepting the new rent. There was prepayment of the docking fee. Ms. Más related that Mr. Jacobs’ letter explained that if there was no prepayment, the ship would not dock. While there was a delinquent account with Holland Group, it was because of the unlawful invoices that they were unable to sustain. The daily invoices for operations were always paid within 24 hours, including charges for wharfage, docking and water service to the vessel.

While the tariff does not deal with lease agreements between the Mayagüez Port Commission or port operator with the users of the port, she believed that an assessment should be done for a fair and reasonable rent. Such assessment should include a comparison of similar places. In Exhibit 16, a letter from Holland Group dated September 9, 2008, Holland Group informs plaintiffs for the first time of the rental rates of 800% more than what plaintiffs had been paying up to then. Ms. Más said it could not be the assessment of the tariff because the tariff is just and reasonable, and plaintiffs believe this is not. Section 15, page 108 of the tariff, the second paragraph, reads

The precise rental rate applicable to a particular parcel of such land will depend at each facility at which land is available on assessments of land values and taking into consideration the size of the particular parcel under consideration, its location in relation to the waterfront, the service highways, the existing utilities, and similar factors which have a direct bearing on rental value.

(Docket No. 2-7, at 50, ¶ 2.) The next paragraph at page 109 of the tariff, reads

In accordance with the Port of Mayagüez policy, rental agreements, involving land at the Port of Mayagüez Marine Terminals, will provide for the re-establishment of the rental rate by the Port Administrator without limitation.

{Id. at 51, ¶ 1.)

Ms. Más stated that the port of Mayagüez is comprised of 19 cuerdas. According to Exhibit 16, Holland Group was beginning to charge for office space $4,129.26 per square foot and for work sheds $4,217.09. The charge was $10 per square foot and for the paved area, the rent was $32,413.98 at $7.00 per square foot. The non-paved area would be at $5.00 per square foot. Inside the preferential area there are paved and non-paved areas. When she received letters from Mr. Jacobs, she went back to him with a proposal for a reasonable amount of rent, which is the rent being paid in other ports of Puerto Rico under the Puerto Rico Ports Authority. She thought the proposed rent was excessive but also thought the rent established in 2003 was fair, the rent paid in other ports in Puerto Rico.

Referring to Exhibit 19, a letter forwarded on September 16, 2008 from Holland Group to plaintiffs, Ms. Más referred to the second paragraph where Mr. Jacobs says that the rent is what the other port renters pay and if plaintiffs want a discount for volume, they should request it. Plaintiffs then sent an offer for discount for volume. Plaintiffs reiterate that they believe that the fair rent is the rent paid at the rest of the ports, although plaintiffs did make an offer to increase the passenger fee on October 8. Ms. Más does not know if profit is made in other Puerto Rico ports, and does not know if the ports of the government are meant to make a profit. She felt it should be the same rent for plaintiffs, although Mayagüez is smaller and operated by a private operator. She is not aware of the rents of the other clients in the port of Mayagüez.

Ms. Más referred to Exhibit 22, an October 8 letter to the attorney for the Mayagüez Port Commission, Mr. Sánchez, with copy sent to Holland Group. Copies of the letter were sent to Néstor González, Dennis Bechara, and José González Freyre. In this letter, attorney Bayron is trying to summarize the October 2 proposal to Holland Group. This was plaintiffs’ principal interest. And she said that it was agreed that the letter would be sent to the attorney of the Mayagüez Port Commission because their proposal would affect the tariff and the Mayagüez Port Commission would have to evaluate it. Plaintiffs’ proposal would mean a temporary adjustment to the tariff while Holland Group matured as a firm. When asked what entities are allowed to propose new tariffs, Ms. Más stated that she understands that proposals come from the Commission, or whomever administers the same, and from plaintiffs, as agreed to. Referring to page 17 of the tariff, the last sentence of definition, she read: “The port administrator is the party responsible for proposing any new rule and amendment.” She said that all three parties were at a meeting on October 2, and all agreed as to what was to be done. Nothing happened with the proposal of Mr. Bayron made on October 8. The proposal was made to Holland Group. In the letter of October 10, in the second paragraph, plaintiffs make reference to the meeting of October 2, making reference to the negotiation process. In the October 14 letter by Tony Jacobs (Exhibit 24), he refers to her complaints in her October 10 letter (Exhibit 28) concerning the charges that were being made by Holland Group, because there were no supporting documents and some invoices were for charges in arrears. Mr. Jacobs states that the procedure is that it has to be paid first and then disputed, but Ms. Más explained that that is when they are complete and those invoices are not, they have no supporting documents. This is an incorrect application of the tariff based on the lack of supporting documentation. Thus, both provide reasons not to pay. As to the vessel manifest and the tariff, the issue of the invoices is before the Mayagüez Port Commission at the present.

Ms. Más related the incident of October 23, when Gate 5 was closed without prior notice. Nobody was told this would happen. They could not find Mr. Jacobs and left him a message. They called the Mayagüez Port Commission to intervene, considering the vessel would arrive the next day at 8:00 A.M. and the vessel had to dock. Containers of Marine Express were stopped, although not vehicles. On the following day, the matter was resolved. The Mayagüez Port Commission said it would call Holland Group. Holland Group referred to the invoices that plaintiffs had not paid and that was why Gate 5 was closed. Plaintiffs were then required to pay in advance and had to make a prepayment in order for the vessel to dock. After October 23, 2008, Holland Group has not interrupted plaintiffs.

Ms. Más opined that there were no more obstacles because of the Federal Maritime Commission filing and this injunction proceeding. No more transiting containers have been stopped. However, every day Holland Group demands a check based upon each exiting container and plaintiffs have to pay demurrage for any containers remaining in the port for more than six days. If there is no check, the container cannot leave. She noted that plaintiffs have never owed the defendants anything, and that the defendants refuse to negotiate with them.

Referring to the tariff at page 64, section 7.31, it describes payment of invoices and the consequences of not paying. Section 7.32 notes that delinquent accounts have a 9% annual arrears rate. Accounts that are delinquent become due immediately. Invoices are payable in full although the vessel owner has the right to dispute. Ms. Más disagrees that plaintiffs’ account was delinquent, and that it is u