Lakos v. Saliaris

• Decision Date: 31 December 1940
• Docket Number: No. 4670.,4670.
• Citation: 116 F.2d 440
• Parties: LAKOS et al. v. SALIARIS. THE LEONIDAS.
• Court: U.S. Court of Appeals — Fourth Circuit

116 F.2d 440 (1940)

LAKOS et al. v. SALIARIS.

THE LEONIDAS.

No. 4670.

Circuit Court of Appeals, Fourth Circuit.

December 31, 1940.

Sol C. Berenholtz, of Baltimore, Md., for appellants.

Robert W. Williams, of Baltimore, Md. (Ritchie, Janney, Ober & Williams, of Baltimore, Md., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from an order dismissing a libel filed by five Greek seamen against the Greek steamship Leonidas. The purpose of the libel was to recover as balance of wages a so-called "war bonus" of 80% of the basic wage scale plus two pounds ten shillings per day while in belligerent areas. The court below, being of opinion that the "war bonus" did not constitute wages within the meaning of 46 U.S.C.A. § 597 and that the interests of justice did not require it to adjudicate the controversy between the foreign seamen and a vessel of their own country with respect to the "war bonus", declined jurisdiction. The Leonidas, D.C., 32 F.Supp. 738.

Four questions are presented by the appeal: (1) whether the statute in question has relation to foreign seamen on a foreign vessel ending a voyage in a port of the United States; (2) whether the war bonus constitutes wages within the meaning of the statute; (3) whether payment of wages to the seamen themselves upon completion of the voyage is required by the statute notwithstanding their agreement that a portion thereof be sent to a foreign country; and (4) whether the courts of the United States are required to assume jurisdiction of the controversy with regard thereto. We think that all of these questions must be answered in the affirmative.

The statute in question, 46 U.S. C.A. § 597, which was intended by Congress to guarantee to seamen the payment of their wages, is as follows: "Every seaman on a vessel of the United States shall be entitled to receive on demand from the master of the vessel to which he belongs one-half part of the balance of his wages earned and remaining unpaid at the time when such demand is made at every port where such vessel, after the voyage has been commenced, shall load or deliver cargo before the voyage is ended, and all stipulations in the contract to the contrary shall be void: Provided, Such a demand shall not be made before the expiration of, nor oftener than once in, five days nor more than once in the same harbor on the same entry. Any failure on the part of the master to comply with this demand shall release the seaman from his contract and he shall be entitled to full payment of wages earned. And when the voyage is ended every such seaman shall be entitled to the remainder of the wages which shall be then due him, as provided in the preceding section: Provided further, That notwithstanding any release signed by any seaman under section 644 any court having jurisdiction may upon good cause shown set aside such release and take such action as justice shall require: And provided further, That this section shall apply to seamen on foreign vessels while in harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement."

It is well settled that the protection of this statute extends to foreign seamen on a foreign vessel within a port of the United States and that it secures to them the payment of their wages upon the completion of the voyage ending in such port. Patterson v. Bark Eudora, 190 U.S. 169, 23 S.Ct. 821, 47 L.Ed. 1002; Strathearn S. S. Co. v. Dillon, 252 U.S. 348, 40 S.Ct. 350, 64 L.Ed. 607; The Sonderberg, 4 Cir., 47 F.2d 723.

We come, then, to the second and principal question, which is whether the war bonus sued for constitutes wages of the seamen within the meaning of the statute. That bonus was provided for in a contract between the seamen and the master of the vessel when they signed on at Philadelphia, on January 8, 1940, "for a voyage or more and return to the United States". Under this contract they were to receive "Greek wages, plus war bonus according to Greek law". The bonus was 80% of the basic wage, regardless of where the vessel went, plus two pounds ten shillings per day while actually in belligerent areas.

The bonus provision of the Greek law is contained in a Greek departmental order, and was arrived at by conferences between the Under Secretary of Marine of Greece and representatives of various seamen's unions. In addition to providing the amount of the bonus, it provides that the captain of the vessel shall remit the bonus to the Bank of Greece immediately upon the conclusion of the voyage. The amount remitted is to be payable only to some one in Greece, but, as we understand the order, it may be deposited in a savings bank or a postal savings account in that country for the benefit of the absent seamen. In the case at bar, the master of the vessel paid the men their basic wages upon arrival of the vessel in Dublin, Ireland; and the so-called "war-bonus" earned up to that time was sent to the Bank of Greece to be paid to certain individuals named by the men, and is not here involved. The vessel then returned to the port of Baltimore, where the voyage for which libelants had signed was at an end. They were paid their basic wages, but the "war bonus" earned on their return voyage was withheld to be sent to the Bank of Greece. It is this "war bonus" earned on the second leg of the voyage which is here involved.

There can be no question but that the so-called "war bonus" was additional wages for extra-hazardous service. It was awarded as the result of a demand for increased wages, and was paid for services rendered and for nothing else. To call a portion of such wages a "war bonus" does not alter its essential character. La Juett v. Coty Mach. Co., 153 Misc. 410, 275 N.Y.S. 822; 5 Words and Phrases, Permanent Edition, 670. Wages is "the compensation agreed upon by a master to be paid to a servant, or any other person hired to do work or business for him. In maritime law. The compensation allowed to seamen for their services on board a vessel during a voyage". Black's Law Dictionary 1230. See also 67 C.J. 284; 56 C.J. 961 et seq.; The Magnetic, D.C., 293 F. 94; Ryan v. Hook, 34 Hun, N.Y., 185, 191; Cookes v. Lymperis, 178 Mich. 299, 144 N.W. 514; Phoenix Iron Co. v. Roanoke Bridge Co., 169 N.C. 512, 86 S.E. 184. The compensation agreed upon was for the ordinary services which as seamen libelants were expected to render. There was no element of special compensation for services beyond the line of duty.

A bonus is "a sum paid for services, or upon a consideration in addition to or in excess of that which would ordinarily be given". Kenicott v. Wayne County, 16 Wall. 452, 471, 21 L.Ed. 319; George A. Fuller Co. v. Brown, 4 Cir., 15 F.2d 672, 676; Noel v. Parrott, 4 Cir., 15 F.2d 669, 671; Bass v. Hawley, 5 Cir., 62 F.2d 721. The term implies "something given in addition to what is ordinarily received by, or strictly due to, the recipient". Pugh v. Scarboro, 200 N.C. 59, 156 S.E. 149, 150. If, therefore, there is no such element of additional compensation, but the amount is merely what the parties expected to be paid for services rendered, it is a misnomer to call it a bonus. Thus, in La Juett v. Coty Mach. Co., supra, 153 Misc. 410, 275 N.Y.S. 822, it was held that an agreement to pay $12 per week as wages and the difference between that sum and former wages as a bonus when the financial condition of the employer would permit, did not prevent the whole amount being considered as wages. And, in Ciarla v. Solvay Process Co., 184 App.Div. 629, 172 N.Y.S. 426, 428, it was held that bonuses to encourage efficiency and economy and to retain the service of employees, based on a percentage of wages, must be included in calculating wages under a workmen's compensation act, "`wages' means the money rate at which the service rendered is recompensed under the contract of hiring * * including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer". Even the tips received by a Pullman car porter, where they are understood by the porter and the company to be a part of his "wages", can be considered as such in determining the compensation to which he is entitled for injuries. Bryant v. Pullman Company, 188 App.Div. 311, 177 N.Y.S. 488. And tips received by a taxi driver, where taken into consideration in fixing wages, should be added to regular wages in determining the average weekly wage as the basis of an award. Sloat v. Rochester Taxicab Co., 177 App.Div. 57, 163 N.Y.S. 904.

Whatever may be thought of the soundness of the rule which assimilates bonus payments made by others to wages paid by the employer, there can be no question but that payments made under contract by the employer himself should be thus treated. As said in Johnson v. Fuller & Johnson Mfg. Co., 183 Wis. 68, 197 N.W. 241, 245, "where an employer pays a bonus he has in view a benefit accruing to him, consisting of an inducement to continuous service and of loyalty on the part of the employee. The employee does not receive the bonus as a gift, as the literal meaning of the term would indicate, but, on the contrary, as a part of his wage." And a "bonus" definitely promised as additional compensation has been held to be wages and within the protection of the statute of South Carolina giving a lien for wages. Robertson v. Wise, 153 S.C. 459, 151 S.E. 87, 88. Also one who is promised a bonus for continuous work for a year in addition to regular wages, is entitled to recover a proportionate part of the bonus promised, upon wrongful discharge during the year. Roberts v. Mays Mills, 184 N.C. 406, 114 S.E. 530, 28 A.L.R. 338. The rule is thus stated in Labatt's Master and Servant, 2d Ed., vol. 2, p. 1323: "In some contracts it is stipulated, either absolutely or conditionally, that a sum designated as a gift, gratuity, or bonus shall be payable at a certain date. Such a sum is in...