Marine Cooks & Stewards, AFL v. Panama Steamship Co.

• Citation: 265 F.2d 780
• Decision Date: 06 April 1959
• Docket Number: No. 15637.,15637.
• Parties: MARINE COOKS & STEWARDS, AFL, a voluntary association, James O. Willoughby, Virgil Rogers and Willard Richards, Appellants, v. PANAMA STEAMSHIP COMPANY, Ltd., a corporation, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

265 F.2d 780 (1959)

MARINE COOKS & STEWARDS, AFL, a voluntary association, James O. Willoughby, Virgil Rogers and Willard Richards, Appellants, v. PANAMA STEAMSHIP COMPANY, Ltd., a corporation, et al., Appellees.

No. 15637.

United States Court of Appeals Ninth Circuit.

April 6, 1959.

J. Duane Vance, Seattle, Wash., for appellants.

Summers, Bucey & Howard, Charles B. Howard, Seattle, Wash., John D. Mosser, Portland, Ore., for appellee.

Before POPE, HEALY and ORR, Circuit Judges.

ORR, Circuit Judge.

Upon the complaint of appellees the trial court issued an order enjoining appellants from conducting certain alleged picketing activities. On the appeal lodged in this court we have had two hearings.

At the first hearing appellants rested their contentions on lack of jurisdiction of the trial court to issue the temporary injunction because of the prohibition contained in the Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C.A. § 101 et seq. (1956).

On the second hearing their contention was broadened to include an assertion of a lack of statutory basis for the district court to consider this action at all on the civil side either as to the injunction or the claim for damages, which latter claim is still pending below.

The essential facts follow.

The S. S. Nikolos, a vessel registered under the Liberian flag and owned by appellee Panama Steamship Company Ltd., a foreign corporation, arrived in Tacoma Harbor in the State of Washington during the early morning hours of June 10, 1957. Its master, officers and crew were aliens. The time-charterer, appellee Seatankers, Inc., is not a citizen of the United States.

The ship was carrying a cargo of bulk salt loaded at a port on the West Coast of Mexico. The consignee was the Hooker Electro-Chemical Co. to whom the cargo was to be delivered at a berth in Tacoma Harbor. The ship was cleared and passed by the Immigration, Quarantine and Custom authorities and was therefore lawfully entitled to discharge its cargo.

While at anchorage awaiting the assignment of a berth, the ship was approached by a small vessel, the "Will-O-Bee", displaying a "Picket Boat" sign and then and there operated by appellants Willoughby, Rogers, and Richards, members of appellant Marine Cooks & Stewards AFL, Willoughby being the duly authorized Port Agent. Willoughby boarded the Nikolos and notified the master that the ship was being picketed by his association.

The "Will-O-Bee" continued to circle around the Nikolos displaying its picket signs. In addition, Willoughby threatened the Hooker Electro-Chemical Co. with the establishment of a picket line at its dock if the Nikolos was allowed to berth.

In awarding a temporary injunction pending a final determination as to damages and the issuance of a permanent injunction, the trial court made findings to the effect that the picketing conduct of appellants was an unlawful interference with international commerce and particularly with the right of appellees to carry out an international voyage and maritime contract of affreightment, utilizing a vessel lawfully registered with a friendly foreign nation and manned by an alien crew under foreign shipping articles. Further findings are that appellees have also entered into and are seeking other like contracts; that by reason of the picketing the Nikolos has acquired the reputation of a "hot ship" and that appellees' reputation for carrying out their contractual obligations have become impaired.

The trial court further found that the United States as a nation has international obligations with respect to commerce and with respect to the relations of this country with friendly maritime nations and that the acts of the appellants might impair such obligations and cause irreparable damage to such relations. It found that the appellees had no adequate remedy at law and that the public officers charged with a duty to protect appellee's property were unable to furnish adequate protection as shown by lack of evidence of any action by such authorities and the fact that no public official was charged with such responsibility.

The trial court also found that there had been no fraud; no physical violence to persons or injury to tangible property or threats of such by appellants.

It seems to be an accepted fact that there was no dispute between the members of the crew or any of them and the master or owners. The picketing was purely a matter of protest by the appellants of the alleged threat to American working standards created by the foreign crews who work under substantially less favorable circumstances than crews on American ships.

In now turning to a consideration of the questioned jurisdiction of the trial court to entertain the action, we keep in mind that the jurisdiction of a federal district court rests upon statutory grant, Sheldon v. Sill, 1850, 8 How. 441, 49 U.S. 441, 12 L.Ed. 1147, and he who invokes that jurisdiction has the burden of establishing it. McNutt v. General Motors Acceptance Corp., 1936, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135.

Appellees upon whom rests that burden specifically disclaim diversity of citizenship as creating the statutory basis. See 28 U.S.C.A. § 1332.¹

Appellee has also refrained from invoking jurisdiction on the admiralty side under 28 U.S.C.A. § 1333. This position may have been dictated by the unavailability of a jury trial on the damage issue in admiralty and because of appellee's belief that admiralty cannot afford injunctive relief.²

Appellee rests his claim of jurisdiction on 28 U.S.C.A. § 1331 creating general federal question jurisdiction in the district court. Section 1331 provides that "the district courts shall have original jurisdiction of all civil actions wherein the matter in controversy * * * arises under the Constitution, laws, or treaties of the United States." (It is clear and conceded that the amount in controversy required by the statute in force at the time of the institution of suit was met.)

In sustaining jurisdiction under § 1331 the first hurdle is the requirement that the substantive law creating the cause of action be federal or that some element of federal law must be established as part of the cause of action. Smith v. Kansas City Title & Trust Co., 1921, 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577. That hurdle is cleared here because appellee's cause of action is based on interference with maritime traffic on navigable waters and on interference with the performance of a maritime contract constituting maritime torts.³ The substantive law of such torts is basically federal. See Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Gilmore & Black, op. cit. supra note 2 and 2, 45 and cases cited therein. See also Romero v. International Terminal Operating Co., 79 S.Ct. 468, 483 ("the federal nature of the maritime law administered in the federal courts has long been an accepted part of admiralty jurisprudence").

Having determined that the cause of action in the instant case depends upon federal law, the next problem is whether it arises under the "Constitution, laws, or treaties of the United States" within the meaning of § 1331.

Most forceably argued pro and con has been the line of controversy typified by Doucette v. Vincent, 1952, 194 F.2d 834 in the first circuit, Paduano v. Yamashita, 1955, Kisen Kabushiki Kaisha, 221 F.2d 615 in the 2nd circuit; Jordine v. Walling, 1950, 185 F.2d 662 in the 3rd Circuit and Jenkins v. Roderick, 1957, 156 F.Supp. 299 in the Massachusetts District Court. All of those cases involved the question of whether certain seamen or longshoremen suing for personal injuries could get a jury trial by proceeding on the law side of the federal court under § 1331. The theory in favor of such jurisdiction was that although the claims were cognizable in admiralty under 28 U.S.C.A. § 1333⁴ the savings clause of that section, in bold face type in note 4, allowed them to proceed in any court competent to give an in personam remedy of damages and § 1331 created such competence in the law side of the federal district court.

The existing difference of opinion has been resolved by the U. S. Supreme Court in the recent Romero case, supra 79 S.Ct. 475, wherein it was held that "saving clause" actions are not within the grant of § 1331. In that opinion it is stated that "from 1875 to 1950 there is not to be found a hint or suggestion to cast doubt on the conviction that the language of that statute (§ 1331) was taken straight from Art. III, § 2, cl. 1 (of the Constitution), extending the judicial power of the United States `to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.' Indeed what little legislative history there is * * * indicates that this was the source. Thus the Act of 1875 (creating the predecessor of § 1331) drew on the scope of this provision of clause 1, just as the Judiciary Act of 1789 (creating the admiralty jurisdiction) reflected the constitutional authorization of clause 1 of section 2 (sic), which extended the judicial power to all Cases of admiralty and maritime Jurisdiction." "* * * The grant of jurisdiction over `suits of a civil nature at common law or in equity * * *' as derived from Article III, could not reasonably be thought of as comprehending an entirely separate and distinct class of cases — `Cases of admiralty and maritime Jurisdiction'."

The Supreme Court thus held that Congress in utilizing the language of the Constitution in its statutory grants of jurisdiction intended to separate admiralty and maritime on the one hand from law and equity on the other. Therefore appellee's argument that jurisdiction can be found under § 1331 because it is a savings clause action would be of no avail. But we are convinced that this is not a saving clause action. This is an action for an injunction, and admiralty at no time has had jurisdiction of such actions. We...