Mavromatis v. United Greek Shipowners Corporation

• Decision Date: 11 January 1950
• Docket Number: No. 4426.,4426.
• Citation: 179 F.2d 310
• Parties: MAVROMATIS et al. v. UNITED GREEK SHIPOWNERS CORPORATION.
• Court: U.S. Court of Appeals — First Circuit

179 F.2d 310 (1949)

MAVROMATIS et al. v. UNITED GREEK SHIPOWNERS CORPORATION.

No. 4426.

United States Court of Appeals First Circuit.

December 5, 1949.

As Modified on Denial of Rehearing January 11, 1950.

Herbert Lebovici, New York City (Berman, Berman & Wernick, Portland, Me., and Arkin, Lebovici & Kottler, New York City, on the brief), for appellants.

Richard S. Chapman, Portland, Me. (Nathan W. Thompson and Benjamin Thompson, Portland, Me., on the brief), for appellee.

Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and CLIFFORD, District Judge.

MAGRUDER, Chief Judge.

Eight Greek seamen, who served aboard the S.S. Niki, filed in the court below a libel in personam against United Greek Shipowners Corporation, a Delaware corporation, to recover: (1) three days' unpaid wages from July 20 to July 23, 1946, plus penalties as provided in 46 U.S.C.A. §§ 596, 597; (2) the amount of wages withheld as compulsory savings, plus penalties as provided in 46 U.S.C.A. §§ 596, 597 in case of illegal deductions made "without sufficient cause"; (3) the amount of advances illegally made prior to the time the seamen's wages had actually been earned and thereafter deducted from the final wage payments, 46 U.S.C.A. § 599; (4) a bonus provided by the contract of employment for each six months' period of continuous honorable service; (5) damages prescribed by the Greek Commercial Code in case of wrongful discharge; and (6) damages for alleged false arrest in Portland, Maine.

The Niki, a liberty ship owned by the United States, was chartered to the Greek Government during the recent war, apparently on a bare-boat basis. While flying the Greek flag and manned by a Greek crew, the Niki carried cargoes for the United States Army. Three such voyages are now in question. The first, commencing July 3, 1945, was from Norfolk, Virginia, to Holland, and return to New York the following September. The second, commencing September 25, 1945, and terminating March 31, 1946, was from New York to Japan and return. The third, commencing April 1, 1946, was from New York to Bremen and return to the United States; and on this return voyage the present libelants were discharged at Portland, Maine, on July 23, 1946.

During these voyages the Niki was operated by respondent for the Greek Government. The terms of the agency agreement do not appear, but on this appeal respondent did not press any challenge to libelants' contention that respondent must be deemed to be the owner pro hac vice; so we are not now concerned with the general problem considered in Cosmopolitan Shipping Co. v. McAllister, 1949, 337 U.S. 783, 69 S.Ct. 1317, and Fink v. Shepard S.S. Co., 1949, 337 U.S. 810, 69 S.Ct. 1330.

The district court found against libelants on all the claims, and entered a final decree dismissing the libel.

We find no error in the action of the district court in so far as it rejected claims based upon the alleged wrongful discharge of libelants.

It is undisputed that libelants were working under a collective agreement executed in London on September 2, 1943, by the Greek Shipping Cooperation Committee, a body established in London representing the Shipping Offices entrusted with the management of requisitioned Greek merchant vessels, on the one part, and on the other part by representatives of the Federated Greek Maritime Unions. Article (C) (2) of the agreement contains the following:

"(2) In view of the impossibility of applying Article 361 of the Commercial Code it is agreed that:

"(a) If a seaman, before completing six months' service, wishes to continue his employment, the shipowner is not entitled to discharge him except upon payment of the bonus hereinafter provided and payable on completion of six months' service. Where, however, the arbitration committee dealing with the settlement of disputes (provided for at the end of this agreement), or where no such committee is functioning, the consular or port authorities, consider that the discharge is justifiable, the shipowner is not liable to pay any compensation on account of such discharge.

"(b) Those completing six months' continuous service on the ship shall be entitled to a long period service bonus, amounting to £20 for ordinary members of the crew and to £25 for officers. * * *"

Libelants contend that each of them was unjustifiably discharged prior to the expiration of a six months' period of continuous service, and hence that each of them was entitled to a bonus of £20 as provided in art. (C) (2) (a).

The master testified at some length as to his reasons for discharging the men. He stated that libelants had formed themselves into a "Committee of the Ship" and had practically undertaken to supplant the captain in the control of the vessel; that as such committee they were responsible for repeated acts of insubordination and breaches of discipline. The captain further testified that on returning from the trip to Japan he had sought authorization from the Greek consul to discharge the men in question but that the consul then directed him to keep them aboard till they could be taken to Greece where they could be properly dealt with. However, the situation got so bad that when the Niki arrived in Portland on July 19, 1946, the captain again communicated with the Greek consul and with respondent, and this time received a direction from the consul and from respondent to discharge the men. The captain's testimony in this respect was corroborated by the deposition of the consul. Judge Peters, who was in a better position to determine the credibility of the witnesses, accepted this testimony as true, and concluded that the captain "being responsible for the safety of the vessel and crew and acting as he did under authority and instructions of the Greek Consul, Director of the Mercantile Marine Department of the Greek consulate, was within his rights and fully justified in discharging the men in question and that they have no cause of complaint based on wrongful discharge."

On this record, we cannot overturn as clearly erroneous the findings of the district judge as to the justification for the discharges. We think that these findings are not impeached by the fact that the course of conduct of which the master complained was not limited to the voyage on which the Niki was engaged when it arrived in Portland, Maine, but extended back into the two earlier voyages.

The aforesaid findings preclude any claim by libelants for the £20 bonus under art. (C) (2) (a) of the collective agreement. There was no arbitration committee functioning in the port of Portland. The Greek consul considered that the discharge was justifiable. The agreement itself provides in that event that the shipowner is not liable to pay any bonus on account of such discharge.

Libelants' claim under art. 361 of the Greek Commercial Code also fails. Article 361 provides that a seaman "discharged without justifiable cause, is entitled to be paid his wages in full and besides his pay to be paid an indemnity" equal to four months' wages. However, as noted above, the first sentence of art. (C) (2) of the collective agreement reads: "In view of the impossibility of applying Article 361 of the Commercial Code it is agreed that", etc. This would seem to imply that the bonus provision of the collective agreement was intended to be in lieu of the indemnity provided in art. 361. Whether art. 361 was in effect at the time in question is not clear; but we shall assume that it was. Even so, it does not help libelants' case, for under art. 361 the indemnity is payable only if the seaman is discharged "without justifiable cause". In view of his findings of fact, the district judge concluded that the discharges were justified under the general maritime law, citing The T. F. Oakes, C.C.D.Or. 1888, 36 F. 442, and he observed that no provision of Greek law to the contrary had been brought to his attention.

We think also that the district court was warranted in rejecting the claim for false arrest. It is clear from the testimony that the men were notified of their discharge on July 23, 1946, and that they nevertheless refused to leave the ship. On July 25, on instructions from the Greek consul, the master called the local police on board, and after the men again refused to leave, the master asked the police to take the men off, which the police proceeded to do. Whether the men offered more than passive resistance does not clearly appear. The police put handcuffs on them, escorted them to the local jail, and made complaints against them for assault and battery. At the hearing on these complaints in the Portland Municipal Court the men pleaded nolo, were found guilty, and given suspended jail sentences. It is clear that the master did not do anything more than ask the police to remove the men from the ship; under the circumstances, this use of force was privileged.

There remains for consideration the various wage claims set forth in the libel.

First, as to the wages for the three-day period July 20 to July 23, 1946: It appears from the sheets entitled "Account of Wages", which were introduced as exhibits, that on July 20, 1946, at Portland, payments were made to the seamen for the period April 1 to July 20, 1946. Upon discharging libelants on July 23, the captain offered them their wages for the three additional days, but they refused to accept such payment, apparently on the ground, which we have held above to be erroneous, that they were entitled to an additional bonus of £20 under the collective agreement and to an indemnity of four months' wages under art. 361 of the Greek Commercial Code, on account of being discharged, as they claimed, without justifiable cause. Thereafter the captain turned over to the Greek consul for the account of libelants the amount of wages due for these three days. The district judge found that payment "was later accepted by some of the men after they had again been offered it by the consul." 70 F.Supp....