Jose v. M/V FIR GROVE

• Decision Date: 27 April 1992
• Docket Number: Civ. No. 90-6028-MA.
• Citation: 801 F. Supp. 358
• Parties: Edwin A. JOSE, et al., Plaintiffs, v. M/V FIR GROVE, In Rem, et al., Defendants.
• Court: U.S. District Court — District of Oregon

801 F. Supp. 358

Edwin A. JOSE, et al., Plaintiffs, v. M/V FIR GROVE, In Rem, et al., Defendants.

Civ. No. 90-6028-MA.

United States District Court, D. Oregon.

April 27, 1992.

COPYRIGHT MATERIAL OMITTED

Richard J. Dodson, Law Offices of Richard J. Dodson, Baton Rouge, La., John Buehler, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, Or., for plaintiffs.

Craig Murphy, John Cowden, Wood Tatum Wonacott & Landis, Portland, Or., for defendants.

OPINION

MARSH, District Judge.

The motor vessel FIR GROVE set out on its maiden voyage from the Shin Kurushimi dock yard A at the Port of Onishi, Japan, in January of 1989. The FIR GROVE is owned by Delica Shipping, S.A. and was designed and built by Hisao Otani, an engineer for Inui Steamship, Ltd. The plaintiffs are fourteen former crew members of the FIR GROVE who were recruited to work aboard the vessel by Noimi Zabala, a manning agent in the Philippines. Shortly after arriving in Japan from Manila, plaintiffs boarded the vessel and set sail from Japan with an empty cargo hold headed for North America. The FIR GROVE made six round trip voyages from Japan to the U.S. and Canada to pick up logs for delivery to various ports in Japan. However, on the seventh voyage to Canada and the United States, one of the crew members, plaintiff Edwin Jose, suffered an injury and was discharged for medical care in Adak, Alaska. By the time the vessel reached Coos Bay, Oregon, Mr. Jose met his crew at the Port. Mr. Jose and thirteen other seamen obtained legal counsel, filed a complaint in this court and arrested the vessel.

This action arises out of an employment dispute between those fourteen seafarers who worked aboard the M/V FIR GROVE from January 1989 to January 19, 1990, and the Japanese owners of that vessel. Plaintiffs claim they were paid less than the amount of wages specified in the shipping articles for almost a year prior to the arrest of the vessel. Plaintiffs also contend that they have been "blacklisted" by defendants and their agents in Manila and that they have been unable to find work since filing this action. Defendants admit that plaintiffs were not paid the wages specified in the shipping articles, but argue that the applicable wage rate appears instead in manning contracts signed in the Philippines. Plaintiffs originally sought back wages, penalties on those wages, and damages under various common law tort theories and RICO. Plaintiff Edwin Jose and his wife, Augustine, also sought damages for a personal injury which Mr. Jose sustained while working on board the vessel. Over the last two years, the legal issues involved in this case have undergone extensive briefing and motion practice, discussed more fully, infra. However, after the seas had calmed, only two claims were left for trial to the court: (1) the claim for back wages; and (2) plaintiffs' claims for penalties on those back wages under 46 U.S.C. § 10313(g). A four day trial was held on March 31 — April 3, 1992. The following constitutes my findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

I. BACKGROUND¹

a. History & The Industry

At trial, counsel for both parties presented evidence and testimony from maritime experts regarding the historical development and practices of the international maritime shipping industry along with the historical development and purposes behind the wage provisions in the U.S. Shipping Act. Although much of this testimony went far beyond the relevant issues before me, I found that this historical backdrop was an invaluable "tool" to use as an aid in understanding just what occurred in this case. With few exceptions, which I will focus upon in the course of my discussion, the parties agree to the pertinent historical facts which follow.

The relevant wage provisions of the U.S. Shipping Act, 46 U.S.C. § 10313(e) & (f), originally derive from § 6 of the Act of July 20, 1790, c. 29; 1 Stat. 133. 1 M. Norris, The Law of Seamen, § 17:1 (1985). Section 6 was codified as part of the Shipping Commissioner Act in 1872, Chapter 33, 17 Stat. 269. Section 6 provided, in relevant part, that every seaman could demand and receive up to one-third of all wages due at every port where the vessel delivered cargo and that every seaman could recover the balance of all wages "as soon as the voyage ended, and the cargo or ballast be fully discharged at the last port of delivery." In 1915, the statute was amended at 46 U.S.C. § 596 and 597 to extend the coverage of the act to include foreign seamen.² As Senator Fletcher explained, the purpose behind the statute was threefold:

"First, to give freedom to seamen and improve their conditions; second, to promote safety of life at sea; third, to equalize the wage cost of operating vessels, foreign and domestic, taking cargos or passengers from ports of the United States."

Congressional Record-Senate, October 22, 1915 at 5748.

In the Memorandum decision of Justice Brandeis in Strathearn S.S. Co. v. Dillon, (1919) reprinted in Harv.L.Rev., Vol. 69, May 1956, No. 7, at pp. 1177-1205 (1956), and attached as Appendix XV to defendants' trial memo, he addresses the issue of whether, and to what extent, Congress had the power to confer such rights upon seamen who work aboard foreign vessels under shipping articles made abroad and governed by the laws of a foreign nation. In Strathearn, foreign vessel owners and the British Embassy argued that Congress was without power to confer a right to the seamen to demand one-half wages in a port of the United States. Justice Brandeis traced the history of the Act and found first, that the Act is "primarily" directed towards the master-servant relationship and "designed to complete the emancipation of American seamen."³ Thus, the primary purpose of the Act is to insure that a seaman will be paid his wages promptly upon discharge in a U.S. port, and will not be "turned ashore with nothing in his pockets" after his right to food and shelter on the vessel is terminated. Chung Yong Il v. Overseas Navigation Co., 774 F.2d 1043 (11th Cir.1985), cert. denied, 475 U.S. 1147, 106 S.Ct. 1802, 90 L.Ed.2d 346 (1986); Thomas v. S.S. Santa Mercedes, 572 F.2d 1331, 1334 (9th Cir.1978) (purpose is to give seaman funds on which to live when he is left ashore); Loberiza v. Calluna Maritime Corp., 781 F.Supp. 1028 (S.D.N.Y. 1992); see also Petersen v. Interocean Ships, Inc., 823 F.2d 334, 337 (9th Cir. 1987).

In addition, Justice Brandeis discussed Congress' concern over the decline of the American maritime industry due to competition from unregulated foreign vessels. Thus, in a hopeful attempt to indirectly equalize operating costs throughout the world:

"Congress concluded that if seamen on foreign vessels were freed from liability to arrest in our ports for desertion and this exemption from arrest were coupled with a provision enabling the seaman to obtain here payment of a substantial part of all wages theretofore earned and remaining unpaid, foreign vessels engaged in the American trade would be compelled to raise wages and working conditions to practically the standard prevailing in our coast wide trade. For otherwise they would lose many seamen whenever they entered a port of the United States, and they would be unable to ship new crews except at the rate of wages prevailing in America. As a large part of the world's shipping was required to carry America's export and imports, some believed this equalization of operating expenses would extend gradually to vessels engaged in the carrying of trade wholly between foreign countries ..."

Id., at 1183-4 (emphasis added).

The Court further found that the Congressional extension to foreign vessels logically applied once the vessels entered into U.S. ports: "every foreign vessel owes temporary and local allegiance to the country whose port she enters and becomes amenable to the jurisdiction and laws of the country." Id., at 1185. Thus, the Court concluded that Congress has the power to prescribe conditions of entry, and those conditions override any contrary contractual stipulations. Id., at 1187.

Finally, the Court found that Congress expressly intended that the Act should apply to "all" seamen, American and foreign, in order to "give the seamen the right to leave the ship when in a safe harbor." Id., at 1191.

This historical background brings us to the current statutes. In 1983 Congress enacted § 10313 as a part of its revision of the "marine safety and seamen's welfare laws of the United States." S.Rep. No. 98-56, 98th Cong., 1st Sess., p. 1 (1983). The drafters considered the new statute merely a restatement and codification of the existing statutes and case law. Id., at 1, 5-6, 9-10. The portions of the statute set forth below are relevant to the determination of the issues in this case:

"(e) After the beginning of the voyage, a seaman is entitled to receive from the master, on demand, one-half of the balance of wages earned and unpaid at each port at which the vessel loads or deliver cargo during the voyage. A demand may not be made before the expiration of 5 days from the beginning of the voyage, not more than once in 5 days, and nor more than once in the same port on the same entry. If a master does not comply with this subsection, the seaman is released from the agreement and is entitled to all wages earned. Notwithstanding a release signed by a seaman under section 10312 of this title, a court having jurisdiction may set aside, for good cause shown, the release and take action that justice requires. This subsection does not apply to a fishing or whaling vessel or a yacht.

(f) At the end of the voyage, the master shall pay each seaman the balance of wages due the seaman within 24 hours after the cargo has been discharged or within 4 days after the seaman is discharged, whichever is earlier. When a seaman is discharged and final payment of wages is delayed for the period permitted by this subsection, the seaman is entitled at the time

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