Corporacion Venezolana De Fomento, Plaintiff-appellant, v. Vintero Sales Corporation, Vintero Corporation and Vincenta. Delyra, Defendants-appellees, 712 F.2d 33 (2d Cir. 1983)

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US Court of Appeals for the Second Circuit - 712 F.2d 33 (2d Cir. 1983) Argued May 25, 1983. Decided July 8, 1983

Sirius C. Cook, New York City (Healy & Baillie, Elisa M. Pugliese, New York City, of counsel), for plaintiff-appellant.

Joan H. Hillenbrand, New York City (Thacher, Proffitt & Wood, Edward C. Kalaidjian, New York City, of counsel), for defendants-appellees.

Before FEINBERG, Chief Judge, and LUMBARD and WINTER, Circuit Judges.


This litigation has been before us on a prior occasion, 629 F.2d 786 (2nd Cir. 1980), where we set out in detail the necessary background. Familiarity with our prior opinion is assumed.

On remand, Judge Sweet held a hearing and once again ruled against the plaintiff Corporacion Venezolana de Fomento, ("CVF"). On appeal, it attacks his ruling on several grounds, including his declining to entertain claims based upon the entire body of the Venezuelan Law of Obligations and the Venezuelan penal code, his failure to adjudicate claims against Vintero because of parallel bankruptcy proceedings, his refusal to entertain claims based on CVF's position as a subrogee of the lending institutions and his holding that CVF was not entitled to recovery under the Venezuelan law of simulation.

There is little doubt that the transactions in question appear on their face to be highly suspicious. Measured against that, however, is the paucity of evidence offered by CVF. Notwithstanding its sweeping allegations, it called none of its employees to testify as to the underlying events with which they should have been familiar. Moreover, it offered in evidence a typewritten "Recapitulation" sustaining Vintero's claims as to the cost of repairs on the ships in question. As a consequence, Judge Sweet found that CVF had failed to identify who was behind the various supposedly fraudulent acts, to show that those acts caused CVF to take steps which led to its losses upon the loan guarantee, or to prove an unjustified inflation of the price of the ships.

We have reviewed the various claims made on appeal and we conclude that Judge Sweet's findings preclude recovery by CVF against any defendant based on the Venezuelan Law of Obligations, the Venezuelan penal code, the Venezuelan law of vicarious liability, or CVF's position as a subrogee. CVF's claim under the Venezuelan law of simulation fails in light of Judge Sweet's finding that the cost of repairs was greater than the amount drawn down under the letters of credit. Plaintiff attacks that finding as not supported by the record, but it was in fact based on the Vintero "Recapitulation". While that document may have self-evident weaknesses, CVF had ample opportunity in discovery and at trial to undermine its contents. Instead, it offered it as an exhibit. We see no reason to upset a finding of fact based upon it.

CVF has had a full and fair opportunity to litigate this protracted matter and has chosen for reasons known best to it not to present what would seem to be the most cogent evidence available. It is not entitled to a further opportunity to supply that which it has thus far declined to offer.