Henry v. SS BERMUDA STAR
| Decision Date | 10 February 1987 |
| Docket Number | 86-3855.,No. 85-5307,85-5307 |
| Citation | 663 F. Supp. 1226 |
| Parties | Daniel HENRY, et al. v. The SS BERMUDA STAR, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Gregory P. Beron, New Orleans, La., for plaintiffs.
Christopher O. Davis, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for defendants.
ORDER & REASONS
This matter is before the Court on motion for summary judgment in favor of defendant Bahama Cruise Line, Inc., disponent owner of the SS BERMUDA STAR, seeking dismissal of plaintiffs' claims for recovery of wages, overtime and vacation pay allegedly due under Panamanian law,1 as well as for penalty wages, repatriation expenses and monies allegedly paid by plaintiffs to third parties to secure employment aboard the SS BERMUDA STAR. These claims were originally filed on November 15, 1985, on behalf of crew members Daniel Henry and others. On October 15, 1986, claims filed on behalf of certain additional plaintiffs, Ramon Rodriguez Alvarez and others, were transferred from the Southern District of New York to the Eastern District of Louisiana and consolidated with the action brought on behalf of Daniel Henry, et al.
Because resolution of the legal issues implicit in defendant's motion for summary judgment turned on Panamanian law, the Court appointed Mr. Humberto Ricord as Special Master as an expert on Panamanian law.2 The defendant's motion for summary judgment was considered as to both the case originally filed in the Eastern District of Louisiana and the case emanating from the Southern District of New York, due to the identity of legal issues implicit in the two cases.
The specific issues referred to the Special Master for consideration were set forth in the Court's Minute Entry of August 18, 1986, as follows:
The Special Master issued his report on November 17, 1986, and it was received by this Court and filed of record on December 1, 1986. A copy of the Special Master's report is attached hereto as "Appendix A."4
In response to the first question, the Special Master concluded that the applicable Panamanian law, found in Executive Decree No. 21 of 1982, dictates wages at a rate of 0.59 Balboas (or $0.59) per hour as the minimum salary for crew members contracted outside of the territory of Panama, and overtime pay of 25% of accrued wages as provided by Article 261 of the Labor Code, or such higher wages or overtime pay as may be provided in an individual contract or in the ship's articles. Thus, defendant is correct in its provision for and calculation of base salary and overtime pay at rates of 0.59 Balboas per hour and 25% respectively.
The Special Master further concluded that the "Thirteenth Month," established as a "special bonus" by Cabinet Decree No. 221, November 18, 1971, to be paid in addition to salary, is not applicable to members of the crew of a Panamanian vessel engaged in international maritime commerce, because it is not part of the laws applicable to the contracts of crew members on such vessels, and because the Cabinet Decree itself does not expressly provide for its applicability to the types of contracts here at issue.
As to vacations, the Special Master concluded vacations from maritime work in international trade are regulated by Article 262 of the Labor Code. Article 262 provides for vacation time computed according to the more favorable of international usages or the legal minimum of twelve to eighteen days vacation "for each year of uninterrupted service," with no right to fractional vacation for service periods less than a year. Since the individual contracts of the plaintiffs in this case provide for fourteen and fifteen days annual vacation, plaintiffs have no right to claim additional pay for vacation over and above those fourteen to fifteen days.
The Special Master further concluded the contracts properly provide for repatriation as provided by Article 255 of the Code; that plaintiffs are not entitled to claim additional pay for work on Sunday and national holidays; and that any work performed on vessels during Sundays and national holidays is properly governed by the provisions of the shipping articles and labor contracts on wages and overtime.
Lastly, the Special Master concluded that the contractual wages, overtime pay and benefits paid to the plaintiffs by the defendant were proper under the laws of Panama and concluded that plaintiffs are not entitled to any other payments of salaries, overtime or monetary benefits in addition to what they have received from the defendant.
The Special Master's report provides the reasoning behind the above mentioned conclusions and exhaustively details the bases for his conclusions, supported by citations to the Panamanian code. Contradictory judicial precedent is carefully distinguished by the Special Master and his reasoning appropriately employs the civilian methodology dictated by application of the law of a civilian jurisdiction such as Panama. Although jurisprudence may be reviewed in order to procure whatever guidance it may offer, the civilian system is not dependent upon precedent in the interpretation and application of its laws.
The only challenge to the Special Master's report which gave this Court pause concerned the issue of repatriation expenses. This issue arises within the context of the employment contracts' provision that:
The employer reserves the right to withhold one tenth of the employee's gross monthly pay until a return air ticket to his country of origin is accumulated, as costs toward repatriation expenses, should the employee not complete the full term of this agreement, but such deduction will be refunded in full at the completion of this agreement.
The Court does not address at this time whether each particular plaintiff has in fact been refunded amounts withheld under this clause of the employment agreements, either in money (for those employees as to whom defendant must pay repatriation costs) or in kind as a return air ticket (for those employees as to whom repatriation expenses were not payable by defendant). Rather, the Court has assumed pro arguendo that some form of repatriation expenses have been paid by defendant when owed and that amounts withheld were in fact applied to return air tickets in those instances when repatriation expenses were not owed. The Court's focus here is on the issue whether the defendant's practice of withholding amounts to be applied to repatriation expenses constitutes a violation of 46 U.S.C. § 10315, rendering the defendant liable for the penalties provided in 46 U.S.C. § 10313.
The Special Master concluded that the defendant's actions as to repatriation expenses do not violate Panamanian law and are consistent with Panamanian Code Article 255. The Court accepts this conclusion as to Panamanian law and rejects plaintiffs' interpretation of that Code Article, based upon translations in the record and persuasive authority emanating from the Southern District of New York. See Vinuela v. S.S. BRITANIS, 647 F.Supp. 1139 (S.D.N.Y.1986). However, this Court felt bound to evaluate on its own the arguments raised under Title 46 of the United States Code.
Section 10315 (formerly section 599) provides a listing of certain permissible "allotments" from seaman's wages and provides by its terms that it is applicable to foreign vessels in U.S. waters.5 Plaintiffs urge the withholdings here in question are also foreclosed under the Supreme Court's interpretation of the predecessor statute to 46 U.S.C. § 10315, citing Isbrandtsen Co. v. Johnson, 343 U.S. 779, 72 S.Ct. 1011, 96 L.Ed. 1294 (1952).
Isbrandtsen concerned the propriety of a vessel owner's deducting, from wages due a seaman (Mr. Johnson) upon his discharge from service, amounts incurred by the vessel owner in medical expenses for a fellow seaman who was wrongfully attacked by Johnson. The Supreme Court affirmed the lower courts' judgments for wages and transportation in favor of Johnson, disallowed the seaman's claim for penalty wages, but also rejected the vessel owner's counterclaim for the medical expenses.6 The Supreme Court noted Congress' careful and specific regulation of a seaman's right to final payment upon discharge stating, "Congress has gone so far in expressly listing such deductions and set offs that it is a fair inference that those listed may not be made." 343 U.S. at 789, 72 S.Ct. at 1017.
However, this Court finds Isbrandtsen Co. v. Johnson entirely distinguishable in view of the nature of the "set off" there involved, which amounted to a permanent deprivation of wages otherwise earned. The plaintiffs in the case before this Court have not cited any authority for the proposition that the parties may not agree to what is in effect a delay in payment of wages by withholding a certain amount until either completion of the contract term or discharge; the BERMUDA STAR seaman's right to wages merely accrues biweekly by contract with the exception of the withholdings in question. Because the seamen's federal statutory right to...
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Henry v. S/S BERMUDA STAR
...District of Louisiana, 1 this case presents questions regarding the interpretation of Panamanian law. Henry v. S/S BERMUDA STAR, 663 F.Supp. 1226, 1987 A.M.C. 1377 (E.D.La.1987). We affirm in part, reverse in part, and remand this case to the District Court for further consistent The plaint......