Medina v. Marvirazon Compania Naviera, SA, Civ. A. No. 79-814-G

• Decision Date: 12 March 1982
• Docket Number: 79-926-K.,Civ. A. No. 79-814-G
• Citation: 1983 AMC 2116,533 F. Supp. 1279
• Parties: Floro Herrera MEDINA, (Master), Sergio Aros, et al., Plaintiffs, v. MARVIRAZON COMPANIA NAVIERA, S. A., et al., Defendants. NATIONAL SUGAR REFINING COMPANY, Plaintiff, v. M/V CONSTANTINOS, Her Engines, Tackle, Boilers, etc., in rem, and Saint Constantinos Shipping Company, Defendants.
• Court: U.S. District Court — District of Massachusetts

533 F. Supp. 1279

1983 AMC 2116

Floro Herrera MEDINA, (Master), Sergio Aros, et al., Plaintiffs, v. MARVIRAZON COMPANIA NAVIERA, S. A., et al., Defendants.

NATIONAL SUGAR REFINING COMPANY, Plaintiff, v. M/V CONSTANTINOS, Her Engines, Tackle, Boilers, etc., in rem, and Saint Constantinos Shipping Company, Defendants.

Civ. A. Nos. 79-814-G, 79-926-K.

United States District Court, D. Massachusetts.

March 12, 1982.

COPYRIGHT MATERIAL OMITTED

Myron Boluch, Boston, Mass., for plaintiffs in 79-814-G.

Paul Sullivan, Bagley & Bagley, Boston, Mass., for defendants in 79-814-G.

Bingham, Dana & Gould, James F. McHugh, Boston, Mass., for plaintiff in 79-926-K.

Glynn & Dempstey, Thomas Muzyka, Boston, Mass., for defendants in 79-926-K.

MEMORANDUM OF DECISION

GARRITY, District Judge.

On April 20, 1979, the crew of the M/V Constantinos instituted an action against the M/V Constantinos and various alleged owners and charterers, and arrested that vessel at its berth in Charlestown, Massachusetts. The action was within this court's admiralty subject matter jurisdiction, 28 U.S.C. § 1333, and was identified as an admiralty and maritime claim under Rule 9(h), Fed.R.Civ.P., and process against the vessel issued under Admiralty Rule C. In succeeding weeks, another 20 parties arrested the M/V Constantinos to assert various claimed liens. The court ordered the vessel sold on May 16, 1979, and the public sale, which the marshal held on June 6, 1979 and which the court confirmed nine days later, produced a fund of $111,000.

Since seven parties voluntarily dismissed their claims, 14 remain asserting liens against that fund. The crew, including its captain, seek back wages and other amounts. Dr. Elias Tsavaris claims a seaman's wage lien for money he advanced to satisfy obligations of Saint Constantinos Shipping Company (hereinafter, Saint Constantinos), the crew's employer, to the crew. Port Terminals seeks reimbursement for wharfage services rendered the vessel for part of the period the ship was arrested. National Sugar Refining Company (hereinafter, National Sugar) which had chartered the M/V Constantinos to transport a cargo to North America, asserted liens for cargo damage and loss. It also claims a lien for demurrage and other expenses incurred when a second vessel it had chartered to transport a similar cargo, the M/V Fortune Carrier, was delayed in discharging because the M/V Constantinos occupied its berth. A fifth party alleges a breach of a charter party and nine others present claims for a variety of services and supplies rendered the vessel.

The court referred these consolidated cases to a special master, Bertram E. Snyder, Esquire, on March 13, 1980, pursuant to Rule 53, Fed.R.Civ.P. The order of reference specified matters for the master to address and further provided that he should "also consider any other issues raised by the parties in their memoranda and any that may arise during the course of the hearings before him." In a clarification issued on May 21, 1980, the court made clear that the special master was "authorized to hear and determine in personam claims related to in rem claims" asserted in the cases referred to him. The issues as defined by the court, and as refined by the special master, are set forth on pages 7-9 of the "Master's Report" filed September 1, 1981. On September 3, 1980 the court also referred to the special master the application of plaintiff-intervenor National Sugar for confirmation of an arbitration award. The special master made recommendations on this issue in a six-page report served on the parties on September 17, 1980. The special master received memoranda, held hearings and received evidence on the issues assigned to him, and submitted his report to the court on September 1, 1981. Objections were filed by several parties, and the court heard them on November 23, 1981. Having considered the papers filed in this case, including the "Master's Report", the objections to it, and the parties' memoranda, and the arguments made at the hearing, we make the following rulings and reach the following conclusions.

I. Findings of Fact

Finding them not to be "clearly erroneous", Rule 53(e)(2), Fed.R.Civ.P., the court adopts, and incorporates by reference, the findings of fact made and reported by the special master on pages 10 to 20 of his report, with the following modifications and additions. In finding # 21 on page 14, we change the date of confirmation of the vessel sale to June 15, 1979 from June 11, 1979. Pursuant to the objection of the plaintiff crew and captain, the court corrects finding of fact # 49 at page 17 to read: "Paul William Garber of the Chilean Consulate, fluent in Spanish, was present during the negotiations concerning the crew's and captain's claims." We add to "finding of fact" # 72 on page 20 the sentence, "National Sugar's claim, as confirmed by its counsel at the court's hearing on November 23, 1981, is for $43,744.54." and we insert that figure in place of the $43,762.69 figure on page 41 in the second line. The court also states, as a finding of fact, that "Saint Constantinos owes Captain Herrera 1) $5,254.60 for back wages, 2) $8,466.62 (126 days at $66.60 per day) for January 1 to May 7, 1979, 3) $2000 as one month's vacation pay, 4) passage to San Salvador of $163.00, or a gross total of $15,884.22 less $5000 received, for a net total of $10,884.22." Accordingly, we strike the similar language from page 29 of the "Master's Report.". We also find, based on its lawyer's letter of September 10, 1981, that Strachan has a claim for $29,548.84, not $32,048.84 as stated on page 58 of the "Master's Report." Finally, at the request of the crew and based on the testimony of an expert on Panamanian maritime law and on the filings of various records, we find that under Panama law the captain of a Panamanian vessel would have the status of a crew member.

II. Uncontested Issues

Since the parties have not objected to them, and since they are supported in law and fact, we adopted at the November 23, 1981 hearing, or now adopt without further discussion, the following conclusions reached by the master. These are:¹ 1) that the prohibition of lien clause in the Marvirazon charter party was ineffective since materialmen lacked notice (p. 36); 2) that Port Terminals has a valid claim for $5400 dockage fees, and that this claim, though not a maritime lien, entitles Port Terminals to preferential payment over all maritime liens since Port Terminals rendered services for the benefit of the property and its claimants and looked to the vessel for repayment (pp. 36-38, 58); 3) that National Sugar has a maritime lien for cargo damage and shortage of $24,093.77; 4) that National Sugar has a claim, with tort lien status, for $3,784.57 for breach of charter party (pp. 39-40); 5) that National Sugar has a valid in personam claim for $90,540.51 against Saint Constantinos representing its August 1, 1980 arbitration award but that that award does not bind those not party to the arbitration proceeding; 6) that the following materialmen have maritime liens for necessaries under 46 U.S.C. § 971 in the amounts stated on page 58 of the "Master's Report" as revised on September 10, 1981: Gulf Water, Dixie, All Ships, Atlantic and Gulf, Weber, New Star, Boland and Hellas; 7) that Strachan has a maritime lien for necessaries under 46 U.S.C. § 971 for $29,548.84; 8) that Navegadora Golfo does not have a claim (p. 55); 9) that the special master has correctly stated and applied the rules regarding priority of liens in grouping the materialmen's liens (pp. 50-55);² 10) that the special master's conclusions regarding the awarding of prejudgment interest are correct (pp. 57-58); 11) that the crew is not entitled to penalty wages (p. 27). We turn now to parts of the report to which objections have been filed.

III. Objections of Captain and Crew

The captain and crew object to the special master's report in several respects. They object, first, to the special master's conclusion that members of the crew who signed releases are not entitled to a maritime lien for seamen's wages. They argue that the releases were signed under duress and are, accordingly, not valid.

Seamen are, of course, wards of admiralty. That status confers upon them the special solicitude of the courts, one aspect of which is judicial scrutiny of a seaman's release of wage or injury claims. In Garrett v. Moore-McCormack Co., 1942, 317 U.S. 239, 248, 63 S.Ct. 246, 252, 87 L.Ed. 239, the Supreme Court held that "the burden is upon one who sets up a seaman's release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights." The rule applies to releases of wage claims as well as to other claims. Lewis v. Texaco Inc., 2 Cir. 1975, 527 F.2d 921. The adequacy of consideration and availability of the relevant professional advice were deemed to be factors pertinent to that inquiry. See also Scola v. Boat Frances R., Inc., 1 Cir. 1976, 546 F.2d 459.

Accordingly, those who offer the releases to preclude the crew from asserting wage liens bear the burden of proving that the releases were executed freely. This they have not done. The crew was represented by counsel competent in maritime law. A translator was also present though he did not act as the crew's lawyer. And the release-signing crew did receive $41,884.40. These facts do not satisfy the burden of proving that the releases were freely executed. The crew was in a foreign land which used an unfamiliar form of currency. Its members did not speak English and were apparently uneducated. The crew was owed substantial back wages. The owner's past promises of payment had been honored in the breach. Payments had been little and late. Further, according to Captain Herrera's deposition testimony, at the time the releases were signed little or no food remained on board. The general picture — of a foreign crew...