Jose v. M/V FIR GROVE

• Decision Date: 08 February 1991
• Docket Number: Civ. No. 90-6028-MA.
• Citation: 765 F. Supp. 1024
• 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

765 F. Supp. 1024

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.

February 8, 1991.

COPYRIGHT MATERIAL OMITTED

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

Paul Wonacott, Kathleen A. McKeon, Wood Tatum Mosser Brooke & Landis, Portland, Or., for defendants.

OPINION

MARSH, District Judge.

Plaintiffs are fourteen foreign seamen who filed this action seeking to recover back wages and penalties pursuant to 46 U.S.C. § 10313 as well as compensatory and punitive damages for common law claims of blacklisting, outrageous conduct, breach of the duty of good faith and fair dealing, duress, intentional infliction of emotional distress and fraud. In addition, plaintiff Edwin Jose and his wife, Augustine Jose, seek to recover damages for a maritime personal injury under the Jones Act, 46 U.S.C. App. § 688 and general maritime law of the United States. Both parties have filed cross-motions for dismissal and summary judgment of various claims and portions of this action. Because all motions raise the threshold issue of the law to be applied to this action, I have consolidated them for the purpose of this opinion. For the reasons that follow, defendants' motions to dismiss and plaintiffs' motion for summary judgment are denied.

FACTUAL BACKGROUND

Plaintiffs are former crew members of the M/V FIR GROVE, employed by defendant Delica Shipping, S.A. (Delica) or defendant Inui Steamship Company, Ltd. (Inui), foreign shipping corporations. All plaintiffs are citizens of the Philippines. The Fir Grove is a vessel which flies the flag of the Republic of Vanuatu.

In late 1988, and early 1989, plaintiffs were recruited by Western Shipping Agency, Inc., in Manilla, for service aboard the Fir Grove. While at the Western recruiting office, plaintiffs allege that they signed individual twelve month employment contracts in which the wage rates were left blank. Thereafter, on January 25, 1989, plaintiffs joined the Fir Grove in Japan. Plaintiffs allege that, upon joining the vessel, they were each given a copy of the shipping articles and a copy of the International Transport Workers' Federation Worldwide Collective Agreement ("ITF Agreement").

Between January 25, 1989, and early January of 1990, the Fir Grove completed six voyages. On each voyage, the vessel embarked from Japan for the United States where it loaded shipments of logs and sailed back to Japan where the logs were discharged.

Plaintiffs allege that throughout this period defendants engaged in a fraudulent scheme in which they issued two monthly wage receipts to plaintiffs: one for the amount of wages specified in the ITF wage scale and one receipt for wages actually paid. Plaintiffs assert that they were paid approximately 20 percent of wages owing under the ITF scale. Plaintiffs contend that they could not, however, complain or demand full wages for fear of immediate discharge.

On January 24, 1990, on its seventh voyage to the United States, the Fir Grove was arrested in Coos Bay, Oregon. The original twelve seamen plaintiffs asserted claims for back wages totalling $299,431.00 and for penalty wages of $2.46 million accrued to January 19, 1990.¹ On January 30, 1990, defendants tendered $299,431.00 in back wages to the original twelve plaintiffs. On February 2, 1990, plaintiffs were discharged in Coos Bay, Oregon, and repatriated shortly thereafter.

On February 7, 1990, two additional seamen, Asher Nianga and Virgilio Torriliza were added to the complaint. On February 14, 1990, defendants tendered $50,308.60 in satisfaction of their claims for back wages.

In addition, plaintiffs claim that defendants "blacklisted" them and rendered them unemployable by noting in their seaman books that they were "disabled from future employment," whiting out this notation, then noting that they were "repatriated at the seaman's request." Plaintiffs argue that these notations and corrections have disabled them from future employment. They seek compensatory damages for loss of future income, $250,000 each in emotional distress damages and $3 million each in punitive damages.

MOTION HISTORY

On October 11, 1990, I found that plaintiffs' blacklisting claims did not fall within the definition of "maritime injuries" and thus, this court lacked subject matter jurisdiction over those claims. However, I concluded that the allegations of blacklisting derived from a "common nucleus of operative fact" with plaintiffs' wage claims such that plaintiffs would expect to try both claims in one judicial proceeding. Accordingly, I denied defendants' motion to dismiss and exercised pendent jurisdiction over those claims.²

Thereafter, defendants filed a second motion to dismiss plaintiffs' blacklisting claims on the basis that Philippine law governs the action under a choice of law analysis and that Philippine law confers exclusive jurisdiction over all claims arising out of the employer-employee relationship. Following the briefing on that motion, I directed the parties to answer the following question:

"Assuming Article 217 of the Philippine Labor Code provides original and exclusive jurisdiction over all money claims which arise out of or in connection with an employer-employee relationship, why doesn't this statute override U.S. admiralty jurisdiction over plaintiffs' claims for back wages and Jose's personal injury claim?"

In their response to my question, defendants clarified that they were not arguing that United States jurisdiction could be overridden by concurrent jurisdiction of the Philippine Labor Department, but rather that this court should decline to exercise jurisdiction in the interests of comity and under the doctrine of forum non conveniens. However, defendants included an additional challenge to this court's jurisdiction arguing that plaintiffs' wage claims are not brought "in good faith" and thus, an evidentiary hearing is required to establish subject matter jurisdiction over the wage claims before I may consider the exercise of pendent jurisdiction over plaintiffs' other non-wage related claims.

In the interim, defendants filed a separate motion to dismiss the Joses' claims for personal injuries arguing, again, that Philippine law should apply and the court should decline to exercise jurisdiction on the basis of forum non conveniens.³ Five days after both of defendants' motions were taken under advisement, plaintiffs filed a motion for summary judgment seeking, inter alia, a declaration that the law of Vanuatu applies to this action, to the extent that U.S. law does not apply, under a choice of law analysis. In addition, plaintiffs moved for judgment on the grounds that the shipping articles are the controlling documents to determine the terms of plaintiffs' employment under Vanuatu law, and on the basis of collateral estoppel in light of Judge Tanner's findings and conclusions in Raby v. M/V PINE FOREST.

Because the issues regarding jurisdiction and choice of law have been introduced and addressed by both parties in a piecemeal fashion, I deemed it best to wait until the dust cleared to proceed further with this case. Accordingly, the following constitutes my opinion as to all pending dispositive motions.

STANDARDS

a. Dismissal

Dismissal for failure to state a claim is proper only when it appears to a certainty that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987). For the purpose of the motion to dismiss the complaint is liberally construed in favor of the plaintiff, and its allegations are taken as true. Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1332 (9th Cir.1987).

b. Summary Judgment

Summary judgment is appropriate if the court finds that there is no genuine issue of material fact and the moving party is entitled to judgment as matter of law. Fed.R.Civ.P. 56(c). There is no genuine issue of material fact where the nonmoving party fails "to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.1989).

All reasonable doubts as to the existence of genuine issues of fact must be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.1976). The inferences drawn from underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir.1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Company of North America, 638 F.2d 136, 140 (9th Cir.1981).

DISCUSSION

I. Subject Matter Jurisdiction Over Wage Claims

Article III § 2 of the United States Constitution, as implemented by 28 U.S.C. § 1333, provides that district courts shall have original and exclusive jurisdiction of any civil case of admiralty or maritime jurisdiction. This court has jurisdiction over plaintiffs' claims for back wages and penalty wages pursuant to general maritime law and 46 U.S.C. § 10313. See Jose v. M/V FIR GROVE, opinion at p. 8-9 (filed August 13, 1990); see also Su v. M/V SOUTHERN ASTER, 767 F.Supp. 205, 207 (D.Or.1990) citing Cuevas v. Reading and Bates Corp., 770 F.2d 1371, 1380 (5th Cir. 1985) and Monteiro v. Sociedad Maritima San Nicolas, S.A., 280 F.2d 568, 574 (2nd Cir.), cert. denied, 364 U.S. 915, 81 S.Ct. 272, 5 L.Ed.2d 228 (1960).

Defendants concede that the jurisdiction of this court cannot be overridden by foreign concurrent jurisdiction over the same subject matter. However, def...