Incres S. S. Co. v. International Maritime Workers Union

• Citation: 11 A.D.2d 177,202 N.Y.S.2d 692
• Parties: , 46 L.R.R.M. (BNA) 2644, 40 Lab.Cas. P 66,700 INCRES STEAMSHIP COMPANY, LTD., Plaintiff-Respondent, v. INTERNATIONAL MARITIME WORKERS UNION, Shannon J. Wall, Edward Pogor, John Doe and Richard Roe, Defendants-Appellants.
• Decision Date: 06 July 1960
• Court: New York Supreme Court — Appellate Division

Page 692

202 N.Y.S.2d 692

11 A.D.2d 177, 46 L.R.R.M. (BNA) 2644,

40 Lab.Cas. P 66,700

INCRES STEAMSHIP COMPANY, LTD., Plaintiff-Respondent, v. INTERNATIONAL MARITIME WORKERS UNION, Shannon J. Wall Edward Pogor, John Doe and Richard Roe Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

July 6, 1960.

H. Howard Ostrin, New York City, of counsel (Herman E. Cooper and Eugene N. Sosnoff, New York City, on the brief; Cooper, Ostrin & De Varco and Miller & Seeger, New York City, attorneys), for defendants-appellants.

Breck P. McAllister, New York City, of counsel (Walter L. Stratton, New York City, and Philip J. Loree, Brooklyn, on the brief; Donovan, Leisure, Newton & Irvine, New York City, attorneys), for plaintiff-respondent.

Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY and STEVENS, JJ.

BREITEL, Justice.

The question in this case is whether an American labor union may strike a foreign ship engaged in foreign commerce while such ship is in an American port, and, if not, whether a state court may enjoin such activity.

After a trial, Special Term granted a permanent injunction. The union has appealed.

Plaintiff is a Liberian corporation, actually owned and controlled by Italian nationals. It owns two cruise ships, which are registered in Liberia and fly, as a flag of convenience, the flag of that nation. The ships are claimed to have Monrovia, Liberia, as their home port, although it is conceded that the ships have not been known to have visited that port. The ships, catering largely to American custom, generally ply the sea lanes between New York City and ports in the Caribbean. Their crews are of Italian nationality and are recruited under written articles in Italy. The crews take their leave, and the ships are refitted or repaired in Genoa, Italy, on annual European cruises.

Defendant union is called the International Maritime Workers Union. It was conceived in 1959 at a conference of maritime unions held in London, England, and was formed shortly thereafter by two American maritime unions. Its purpose is to organize foreign seamen employed in ships flying various foreign flags of convenience, which ships are competitive with those that fly the American flag and maintain high labor standards.

The union picketed, organized, and eventually struck plaintiff's two ships while in New York City. As a result the sailings were cancelled. This action ensued and resulted in the permanent injunction which now bars the union from such activity.

There are some peripherial issues and facts raised in the case, but they are hardly determinative: The union stresses the American contacts of the ships by pointing out that their affairs are largely managed in New York City, by an agency corporation, controlled and owned by plaintiff, but incorporated in New York. It stresses too that the cruises run by plaintiff originate in New York City and return there. Plaintiff, on the other hand, stresses various disputed acts committed by the union which it claims to be illegal, but which, on the analysis in this case, it is not necessary to reach.

There are some simple conclusions to be first derived, before the more difficult aspects of the case are considered.

First, the Liberian nationality of plaintiff and the Liberian registry of the ships should not be conclusive of the character of shipping involved. The National Labor Relations Board, in appropriate cases involving 'American' ships foreign flags of convenience has so determined, and the conclusions are entirely persuasive (Peninsular & Occidental S. S. Co., 120 N.L.R.B. 1097 [1958]; Eastern Shipping Corp., N.L.R.B. Case No. 12-RC-415 [1959], CCH-NLRB Decisions p56,698 [1959-1960]). So, too, has the United States District Court in this district (Afran Transport Co. v. Nat. Maritime Union, D.C., 169 F.Supp. 416 [Bryan, J.], in an especially well-considered opinion, cited with evident respect by the Supreme Court in Marine Cooks & Stewards Union v. Panama S. S. Co., infra, 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797). Looking beyond the flag of convenience, however, does not change the character of the ships here from foreign to domestic. The shipping is still foreign--Italian in fact--because of Italian ownership, Italian crews, Italian contracts of hiring, and because the ships are engaged in foreign commerce on the high seas. Quite a different case would be presented if the ships were used exclusively or largely on inland waterways, or for that matter, if one or more of the other factors mentioned were changed. This does not mean that a change in any of these factors would require a contrary result. It is that there would then be a doubtful question of applicability of the federal labor statute and the rule in Garner v. Teamsters, etc., Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, and San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, would apply. See, Dooley v. Anton, 8 N.Y.2d 91, 202 N.Y.S.2d 273.

Second, in the absence of federal pre-emption of the field by Federal labor statutes or preclusion of jurisdiction by virtue of labor anti-injunction statutes, the striking or other interference with the internal management of the crew of a vessel away from its home port is illegal (Southern S. S. Co. v. National Labor Relations Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246). Such interference is illegal because it violates public policy, and, in the case of an American ship, is even a criminal act (U.S.Code, tit. 18, §§ 2192, 2193). Thus, in the Southern S.S. case, it was held that the National Labor Relations Board could not order the reinstatement of seamen discharged for striking an American ship away from its home port even though it had also found that the men had struck because of the employer's unfair labor practices in violation of the then National Labor Relations Act, 29 U.S.C.A. § 151 et seq. The court said:

'Ever since men have gone to sea, the relationship of master to seaman has been entirely different from that of employer to employee on land. The lives of passengers and crew, as well as the safety of ship and cargo, are entrusted to the master's care. Every one and every thing depend on him. He must command and the crew must obey. Authority cannot be divided. These are actualities which the law has always recognized. On the one hand, it has imposed numerous prohibitions against conduct by seamen which destroys or impairs this authority. We shall consider in a moment the nature and scope of the criminal sanctions imposed in case of revolt and mutiny. But it is worth noting here that the form of the 'shipping articles' which the master and every member of the crew must sign prior to the voyage, has been carefully prescribed by Congress, and that these articles contain this promise: 'And the said crew agree * * * to be obedient to the lawful commands of the said master * * * and their superior officers in everything relating to the vessel, and the stores and cargo thereof, whether on board, in boats, or on shore * * *.' U.S.C., Title 46 §§ 564, 713, 46 U.S.C.A. §§ 564, 713. On the other hand, workers at sea have been the beneficiaries of extraordinary legislative solicitude, undoubtedly prompted by the limits upon their ability to help themselves. The statutes of the United States contain elaborate requirements with respect to such matters as their medicines, clothing, heat, hours and watches, wages, and return transportation to this country if destitute abroad. U.S.C., Title 46, §§ 651-692, 1131, 46 U.S.C.A. §§ 651-692, 1131. It is in this setting of fact and law that we must test the validity of the Board's order of reinstatement.' 316 U.S. 38-39, 62 S.Ct. 890.

The court went on to find that 'the strike was unlawful from its very inception' (316 U.S. 48, 62 S.Ct. 895). The policy underlying this principle in the law of the sea is one that has had recognition for a long time, and insofar as foreign ships are concerned, has special vitality because of the comity among nations (cf. Wildenhus's case, Mali v. Keeper of the Common Jail of Hudson County, 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565; Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254).

Third, apart from the question of public policy pervading foreign shipping, and particularly the law of the sea as to the management of a ship's crew, the union activity would be privileged. That is, the economic self-interest of American workers to protect themselves from the competitive depredations of others using foreign labor working under substandard conditions would provide just cause for the intentional economic injury directed to such competition (see, Frankfurter and Greene, The Labor Injunction, 24 et seq.; Forkosch, A Treatise on Labor Law, 398 et seq.; Exchange Bakery & Restaurant, Inc. v. Rifkin, 245 N.Y. 260, 157 N.E. 130). While most of the cases and most of the commentators have considered only domestic disputes, the same principle of justification which applies in the domestic dispute in reason and policy should apply to one involving foreign commerce, provided of course, no other overriding policy or law makes the activity illegal. ¹

On application of but these three conclusions last discussed, the union's activity was wrongful and not privileged, because it interfered with the engagement and management of the ships' crews while the ships were away from the home port. For this purpose, obviously, Monrovia is not the home port, but neither is New York City, merely because the latter is the most important port in the traffic carried by the ships. For the purposes of this de facto Italian line, it is evident that Genoa in Italy is the home port.

But the discussion may not be concluded at this point. The questions still remain whether there has been federal pre-emption by virtue of the federal labor statutes and whether there are any jurisdictionally inhibiting labor anti-injunction statutes.

The...