Philippines, Micronesia & Orient Navigation Company,plaintiff-appellant, v. Nysa-ila Pension Trust Fund, the Board of Trustees of Thenysa-ila Pension Trust Fund, the New York Shippingassociation, the Nysa-ila Fringe Benefit Escrow Fund, Theinternational Longshoremen's Association (afl-cio),defendants-appellees, 909 F.2d 39 (2d Cir. 1990)

Philippines, Micronesia & Orient Navigation Company ("PM & O"), a maritime carrier, appeals from a summary judgment of the United States District Court for the Southern District of New York (Cannella, J.) dismissing its action for a declaratory judgment and the refund of assessments paid to the NYSA-ILA Pension Trust Fund. PM & O sought a judicial declaration that it was not an "employer" of employee participants in the NYSA-ILA Pension Trust Fund and therefore was not liable under ERISA because of its withdrawal from the multiemployer trust plan. We affirm the district court's judgment.

From 1979 to 1985, PM & O, like most other carriers calling at the Port of New York, required the services of an independent stevedore company to unload its ships. As part of the cost of such services, PM & O paid tonnage assessments to the New York Shipping Association ("NYSA"), which in turn were paid to the NYSA-ILA Pension Trust Fund. When, in 1985, PM & O discontinued its operations at the Port of New York, the Fund sought to assess withdrawal liability in accordance with the provisions of the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. § 1381, et seq.

PM & O's principal argument against this imposition of withdrawal liability is that it was not the "employer" of the ILA longshoremen who unloaded its ships, as that term is used in 29 U.S.C. § 1381(a). In making this argument, PM & O relies upon the common law definition of "employer", which looks to such factors as control and supervision of the work, the payment of wages and the right to hire and fire. However, by now, it is well established that the common law definition does not control in cases such as this, where, although independent stevedore companies hire the longshoremen who perform the unloading, the carriers rather than the stevedore companies contribute to the Union's Pension Trust Fund. See, e.g., Bowers v. Transportacion Maritima Mexicana, S.A., 901 F.2d 258, 261-62 (2d Cir. 1990); Korea Shipping Corp. v. NYSA-ILA Pension Trust Fund, 880 F.2d 1531 (2d Cir. 1989); Delta Steamship Lines, Inc. v. NYSA-ILA Pension Trust Fund, 688 F. Supp. 1560 (S.D.N.Y. 1988), aff'd, 880 F.2d 1531 (2d Cir. 1989). The district court correctly concluded that PM & O was a section 1381(a) "employer."

Whether PM & O was a NYSA member is not of controlling significance on the issue of whether PM & O was a withdrawing employer under the statute. In PM & O's contract with its stevedore company, PM & O agreed to pay the tonnage and Joint Security Program assessments and container royalties called for in the Labor Agreement between the NYSA and the ILA. PM & O also signed a separate agreement in which it subscribed to the Collective Bargaining Agreement between the NYSA and the ILA, including the provisions therein contained relating to hourly and tonnage contributions. PM & O's obligations under these agreements were not made contingent on its membership in the NYSA.

Although PM & O had made the questioned payments for at least five years pursuant to the terms of the written agreements; it now seeks a refund pursuant to section 403 of ERISA, 29 U.S.C. § 1103. It has not shown, however, that these payments were made under a mistake of fact. Moreover, PM & O has no valid claim that the promises to make the payments, per se, violated section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e). See Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 83, 102 S. Ct. 851, 70 L. Ed. 2d 833 (1982). It is not entitled to a refund. See section 403(c) (2) (A) (ii).

The judgment of the district court is affirmed.