Empresa Lineas Maritimas Argentinas v. Sindicato Obreros Maritimos Unidos
| Citation | 230 N.Y.S.2d 138,17 A.D.2d 51 |
| Decision Date | 10 July 1962 |
| Docket Number | W,AFL-CI |
| Parties | , 51 L.R.R.M. (BNA) 2049, 45 Lab.Cas. P 17,724 EMPRESA LINEAS MARITIMAS ARGENTINAS, Plaintiff-Appellant, v. SINDICATO OBREROS MARITIMOS UNIDOS, Defendant-Respondent, and 'Martin' Martinez, 'Anthony' Arranz, 'John Doe', 'Richard Roe', 'Thomas Toe', 'Charles Coe', 'Michael Moe', 'Peter Poe', 'James Doe', 'Edward Doe' and 'Frank Doe', the names in quotes being fictitious but intended to describe the individuals picketing at and in the vicinity of the Argentine Flag M/S Rio Tunuyan now lying alongside Pier 25, North River, New York, N. Y., Defendants-Respondents, and International Longshoremens Association (ILA), International Division of the Maritime Trades Departmentilliam V. Bradley and Thomas Gleason, Defendants-Respondents. |
| Court | New York Supreme Court Appellate Division |
Seymour M. Waldman, New York City, of counsel (Louis Waldman and Martin Markson, New York City, with him on the brief; Waldman & Waldman, attorneys), for defendants-respondents International Longshoremen's Ass'n, Bradley and Gleason, individually and as an ILA officer.
Richard P. Long, New York City, of counsel (Ernest L. Garb, New York City, with him on the brief; Wikler, Gottlieb, Stewart & Long, New York City, attorneys), for defendant-respondent International Division of Maritime Trades Dept., AFL-CIO.
Breck P. McAllister, New York City, of counsel (James H. Herbert, James F. Cosgrove, Robert S. Ogden, Jr., New York City, Peter W. Mitchell, and Donovan, Leisure, Newton & Irvine, New York City, with him on the brief; Kirlin, Campbell & Keating, New York City, attorneys), for plaintiff-appellant.
H. Howard Ostrin, New York City, of counsel (Herman E. Cooper, Eugene N. Sosnoff and Robert Henry Sand, New York City, with him on the brief; Cooper, Ostrin, DeVarco & Ackerman, New York City, attorneys), for respondents SOMU, Martinez and Arranz.
Before RABIN, J. P., and VALENTE, STEVENS, EAGER and STEUER, JJ.
Plaintiff is an Argentine corporation, wholly owned by the Republic of Argentina. It owns and operates several vessels. It has no office for the conduct of business in the United States and its sole connection with this country is that from time to time its vessels stop at American ports where these vessels take on and discharge cargo and passengers. As far as appears, none of its seamen are American citizens, and the great majority of them are Argentine nationals. These seamen are members of the defendant labor union Sindicato Obreros Maritimos Unidos (herein SOMU). In November, 1961 one of the plaintiff's vessels, the Rio Tunuyan, was in the port of Santos, Brazil. An altercation arose between a seaman and the officers of the vessel regarding provisions of the contract between plaintiff and SOMU. The other seamen joined their colleague, and what appears to be a mutiny followed. The vessel returned to Argentina, and, following the report of plaintiff's officials to the Argentine Government, the certificate of the protesting seaman was revoked and those of the rest of the crew suspended pending an investigation. A new crew was hired. When the vessel stopped at New York in February 1962, SOMU picketed the pier. Another picket line was established by International Division of the Maritime Trades Department (ID-MTD), an organization composed of a number of unions in the maritime trades. Members of the International Longshoremen's Association (ILA) honored these picket lines, with the result that the vessel could not be unloaded. Plaintiff sought a temporary injunction. Special Term denied the relief and dismissed the complaint. The immediate result was that the vessel sailed away, and the picketing, perforce, ceased.
The question has been raised whether this renders the action moot. By means of picketing defendants could succeed in preventing the vessel from unloading cargo and possibly passengers and force the vessel through practical necessity to depart before an authoritative adjudication of the rights of the parties could be had. Regardless of the number of recurring instances, each would be subject to the claim that the departure of the vessel rendered an adjudication moot. We do not believe that an attempt to define the situation between the parties can thus be made abortive. In the regular course it is expected that this and other vessels of plaintiff will put in at New York. While the period of any one call may not allow a complete adjudication of the rights of the parties, this should not operate to prevent such an adjudication where it is probable that the question will arise again in respect to similar, recurring situations.
The ground for Special Term's determination was that the Labor Management Relations Act had preempted the field and that state courts had, consequently, no jurisdiction. Upon this appeal respondents, while not conceding this point, have placed little, if any, reliance on it. We believe this attitude to be correct.
In reaching its conclusion Special Term relied on Incres S.S. Co. v. International Maritime Workers Union, 10 N.Y.2d 218, 219 N.Y.S.2d 21, 176 N.E.2d 719. There the court decided that the test is whether the dispute is arguably subject to the jurisdiction of the National Labor Relations Board (San Diego Bldg. Trades Council Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775). If it be arguable that the NLRB would take jurisdiction, state courts must yield (Garner v. Teamsters Chauffeurs and Helpers Local Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228). The Court of Appeals concluded that it was arguable that the Board would take jurisdiction, relying on various decisions of the Board indicating its willingness to entertain complaints where it believed the commerce involved was essentially American. The rule of Benz v. Compania Naviera Hidalgo, S. A., 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709, to the effect that the NLRB lacked jurisdiction over the crews of vessels flying foreign flags did not extend to instances where there were sufficient factors to indicate an American operation despite the foreign flag and ostensible foreign ownership. The court relied on various determinations of the NLRB assuming jurisdiction where, inter alia, voyages regularly were initiated or concluded at United States ports, where the maritime business was conducted or vessels serviced here. There are two reasons why this determination is not applicable here. Firstly, the facts are different. The plaintiff is a bona fide foreign corporation. It does no business here in the sense of booking cargoes or passengers. Its vessels are neither provisioned nor drydocked here. The flag is not one of convenience but the actual flag to which the owner owes allegiance. The crews are nationals of the country of the vessel's registry. All of these facts negate the concept of an American operation. But even if it were suggested that nevertheless it was 'arguable' that the NLRB would take jurisdiction, the definitive answer is that it may not (Empresa Hondurena de Vapores S. A. v. McLeod, U.S. Ct. of Appeals, 2nd Circuit, 300 F.2d 222; Sociedad Nacional de Marineros de Honduras v. McCulloch, U.S.D.C. District of Columbia, 201 F.Supp. 82). In the cited cases, the Board attempted to assert jurisdiction over a dispute between a labor union and the owners of a Honduran vessel which had no connection with the United States except that it put in at American ports. The Board claimed jurisdiction on the ground that the owning...
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