801 F.2d 1185 (9th Cir. 1986), 85-2548, Aguirre v. S.S. Sohio Intrepid

Docket Nº:85-2548, 85-2554.
Citation:801 F.2d 1185
Party Name:Daniel AGUIRRE; Lynn Alfsen; Alfred E. Banks, etc., et al., Plaintiffs-Appellants, v. S.S. SOHIO INTREPID, its engines, tackle, apparel, furnishings, etc., in rem, et al., Defendants-Appellees. Francis C. ALLEN; Charles D. Arnet; Frank W. Barber, etc., et al., Plaintiffs-Appellants, v. S.S. GLACIER BAY, its engines, tackle, apparel, furnishings, et
Case Date:October 09, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1185

801 F.2d 1185 (9th Cir. 1986)

Daniel AGUIRRE; Lynn Alfsen; Alfred E. Banks, etc., et

al., Plaintiffs-Appellants,

v.

S.S. SOHIO INTREPID, its engines, tackle, apparel,

furnishings, etc., in rem, et al., Defendants-Appellees.

Francis C. ALLEN; Charles D. Arnet; Frank W. Barber, etc.,

et al., Plaintiffs-Appellants,

v.

S.S. GLACIER BAY, its engines, tackle, apparel, furnishings,

etc., in rem., et al., Defendants-Appellees.

Donald E. ALLEN; Francis C. Allen; Alan Baxter, etc., et

al., Plaintiffs-Appellants,

v.

S.S. SOHIO RESOLUTE, its engines, tackle, apparel,

furnishings, etc., in rem, et al., Defendants-Appellees.

Robert ANDERSEN; Guy M. Duggan; Alfred Griffin, et al.,

Plaintiffs-Appellants,

v.

S.S. RESOLUTE, its engines, tackle, apparel, furnishings,

etc., in rem, et al., Defendants-Appellees.

Guy M. DUGGAN; Richard B. English; etc., et al.,

Plaintiffs-Appellants,

v.

S.S. SOHIO INTREPID, its engines, tackle, apparel,

furnishings, etc., in rem, et al., Defendants-Appellees.

Gerald E. ALEXANDER, Richard M. Andrews, et al., Plaintiffs-Appellants,

v.

S.S. GLACIER BAY, its engines, tackle, apparel, furnishings,

etc., in rem, et al., Defendants-Appellees.

Nos. 85-2548, 85-2554.

United States Court of Appeals, Ninth Circuit

October 9, 1986

Argued and Submitted Sept. 12, 1986.

Page 1186

Norman Leonard, Leonard, Carder, & Zuckerman, San Francisco, Cal., Allan Brotsky, Robert J. Higgins, Angelo V. Arcadipane, Laura A. Layman, Dickstein, Shapiro, & Morin, Washington, D.C., Marvin Stender, Garry, McTernan, Stender, & Walsh, San Francisco, Cal., for plaintiffs-appellants.

Richard Beautigan, Jack G. Knebel, Sherri J. Conrad, McCutchen Doyle, Brown, &

Page 1187

Enersen, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before KOELSCH and ALARCON, Circuit Judges, and WILLIAMS, [*] District Judge.

ALARCON, Circuit Judge:

Plaintiffs/appellants Daniel Aguirre and 75 other merchant seamen (hereinafter seamen) appeal from the district court's order granting partial summary judgment in favor of defendants/appellees S.S. Sohio Intrepid, S.S. Sohio Resolute, S.S. Glacier Bay (hereinafter vessels), and the owner of these vessels, Trinidad Corporation (hereinafter Trinidad). The seamen sought (1) unpaid wages for work performed aboard these vessels, and (2) penalty wages, pursuant to 46 U.S.C. Sec. 10504(c), which accrued at a rate of "2 days' wages for each day payment is delayed." The seamen obtained a maritime lien on the three vessels for the amount of the unpaid wages and wage penalties. While the parties were litigating the case in the federal district court, Congress retroactively amended 46 U.S.C. Sec. 10504 to exempt "vessel[s] engaged in coastwise commerce" from the application of the wage penalty provision. The seamen's sole contention on appeal is that the retroactive amendment of the statute destroyed their maritime lien in violation of the takings clause of the fifth amendment to the United States Constitution. We dismiss the appeal because the seamen's claim is moot and therefore nonjusticiable.

I. FACTS AND PROCEDURAL HISTORY

The facts are undisputed. The seamen were employed aboard the vessels pursuant to a collective bargaining agreement. Trinidad is the chartered operator of the vessels and is represented by the Tanker Service Committee, a multi-employer bargaining agent. The seamen in Case No. CV 84-5938-TEH are members of the Maritime Engineers Beneficial Association (hereinafter the Union). 1

The collective bargaining agreement between the parties ran from June 16, 1981 to June 15, 1984. The agreement provided that effective June 16, 1982, the seamen were entitled to a 7 1/2% wage increase. On July 15, 1982, prior to implementation of this increase, in response to the request of President Reagan, the Union and other workers in the maritime industry agreed to defer the wage increase. The terms of that deferral provide, inter alia, that the "Union shall have the right at any time and in its sole and absolute discretion to reinstitute the wage increase." The agreement also states that "such reinstitution shall be retroactive to such date as determined by the Union," and that "the reinstitution shall have the same force and effect under the Agreement as though the wage increase had not been deferred."

On May 18, 1984, the Union notified Trinidad that it was exercising its right to reinstate the 7 1/2% wage increase, retroactive to July 15, 1982. The Union informed Trinidad that all wages owed pursuant to the deferred agreement were due by May 31, 1984. For reasons not relevant to this appeal, Trinidad disputed the Union's right to reinstate the wage increase provisions of the collective bargaining agreement and refused to pay the retroactive wage increase.

On August 20, 1984, the Union, acting on behalf of the seamen, filed an in personam action against Trinidad, and an in rem action against the vessels, claiming the seamen

Page 1188

were owed approximately $3.2 million in unpaid wages under the deferred agreement and the wage penalties under 46 U.S.C. Sec. 10504. The plaintiffs caused...

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