Monteiro v. Sociedad Maritima San Nicolas, SA

• Decision Date: 29 June 1960
• Docket Number: Docket 25978.,No. 312,312
• Parties: John MONTEIRO, Libelant-Appellant, v. SOCIEDAD MARITIMA SAN NICOLAS, S.A. and THE S.S. EURYVIADES, her engines, boilers, tackle, appurtenances, etc., Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

280 F.2d 568 (1960)

John MONTEIRO, Libelant-Appellant, v. SOCIEDAD MARITIMA SAN NICOLAS, S.A. and THE S.S. EURYVIADES, her engines, boilers, tackle, appurtenances, etc., Respondents-Appellees.

No. 312, Docket 25978.

United States Court of Appeals Second Circuit.

Argued May 10, 1960.

Decided June 29, 1960.

COPYRIGHT MATERIAL OMITTED

Isaac Salem, New York City (Lebovici & Safir, New York City, on the brief), for libelant-appellant.

Donald F. Mooney, New York City (Cardillo & Smith, New York City, on the brief), for respondent-appellee.

Before CLARK, MOORE and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

Libelant is a Portuguese seaman. Respondent, a Panamanian corporation, owns the S.S. Euryviades, a freighter flying the Liberian flag. Libelant shipped on her at Baltimore in April, 1952 as a fireman; he continued to be employed on the Euryviades until September, 1956. He was then discharged at Galveston and, respondent claims, signed a paper acknowledging that he had "received all moneys and wages due me from this vessel" and that "my sole reason for leaving the ship is to visit relatives in this country." Monteiro does not deny the receipt of all regular monthly wages. By this libel, brought in October, 1956, in the Southern District of New York, he seeks to recover additional sums claimed to have been due at the time of his discharge. The case was previously before us, 2 Cir., 1958, 254 F.2d 514, on an appeal from an order quashing the service of process. We held that a hearing was necessary to determine certain issues of fact, and reversed and remanded to that end. Thereafter respondent appeared generally.

The libel as filed asserted two causes of action, one for $4,130.44 of vacation and overtime pay alleged to be owing under the Panamanian Labor Code, and the other for $3,024 of penalty wages claimed to be due under 46 U.S.C.A. § 596. Respondent's exceptions challenged the applicability of Panamanian law. Correctly anticipating, on the basis of Judge Bicks' opinion in Evangelinos v. Andreavapor CIA, NAV, S.A., D.C.S.D. N.Y.1958, 162 F.Supp. 520 our decision, Grivas v. Alianza Compania Armadora, S.A., 2 Cir., 1960, 276 F.2d 822, that Panamanian law was inapplicable under circumstances such as here alleged, libelant cross-moved for leave to amend. The proposed amended libel asserted three causes of action. The first repleaded the claim for vacation and overtime pay under Panamanian law, with variations from the original theme which we deem immaterial. The second set forth a claim for overtime pay of $3,510.54 under § 51 of the Labor Law of Liberia which we quote in the margin.¹ The third cause of action asserted a claim for penalty wages under 46 U.S.C.A. § 596. The district judge entered an order sustaining the exceptions to the libel, denying the cross motion for leave to amend and dismissing the libel without leave to plead over, 175 F.Supp. 1. From this order libelant appeals.

For reasons stated in Grivas v. Alianza Compania Armadora, supra, the district court was right in dismissing the original libel and in denying leave to plead the first cause of action in the proposed amended libel. However, unlike Grivas, where libelants had neither pleaded nor proved the Liberian law, 276 F.2d at page 826, here the second cause of action in the proposed amended libel alleged a provision of Liberian law on its face entitling libelant to overtime pay which he claims not to have received. Our further discussion will relate solely to this second cause of action and the related claim for penalty wages under 46 U.S.C.A. § 596.

The district court based the denial of leave to amend in part upon the ground, 175 F.Supp. 3, that a seaman's claim for compensation which is derived solely from a foreign statute applying to workmen generally is not an "admiralty or maritime" claim; hence the court was without jurisdiction under 28 U.S.C. § 1333, and no other basis of federal jurisdiction existed. The court was mistaken in ruling that the claim was not maritime. The critical consideration is the claim's relationship to the sea, see The Poznan, D.C.S.D.N.Y.1921, 276 F. 418, 433, not whether it arises under unwritten or — subject only to the principle of Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 — written law. We have previously taken cognizance of seamen's wage claims based solely on foreign statutes, see, e. g., Bournias v. Atlantic Maritime Co., 2 Cir., 1954, 220 F.2d 152; Rodriguez v. Gerontas Compania, 2 Cir., 1958, 256 F. 2d 582, affirming D.C.S.D.N.Y.1957, 150 F.Supp. 715, 720. If jurisdiction in admiralty was not there discussed, this was doubtless because the rule of La Bourgogne, 1908, 210 U.S. 95, 138, 28 S.Ct. 664, 52 L.Ed. 973, that admiralty will take jurisdiction over tort claims arising from foreign statutes, was thought to make it unnecessary to discuss the similar problem in wage cases. See also the Supreme Court decisions with respect to state death acts, of which Hess v. United States, 1960, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305 and Goett v. Union Carbide Corp., 1960, 361 U.S. 340, 80 S.Ct. 357, 4 L.Ed.2d 341, are the latest.

An alternative basis for the denial of leave to amend was that the court might decline jurisdiction because of the availability of another remedy. Article X of the Convention Between the United States and Liberia Respecting Consular Officers, 54 Stat. 1756 (1939), provides:

"A consular officer shall have exclusive jurisdiction over controversies arising out of the internal order of private vessels of his country, and shall alone exercise jurisdiction in cases, wherever arising, between officers and crews, pertaining to the enforcement of discipline on board, provided the vessel and the persons charged with wrongdoing shall have entered a port within his consular district. Such an officer shall also have jurisdiction over issues concerning the adjustment of wages and the execution of contracts relating thereto provided, however, that such jurisdiction shall not exclude the jurisdiction conferred on local authorities under existing or future laws."

Respondent submitted a certificate of the acting Liberian Consul General in New York that the consul was willing to investigate and determine libelant's claim "whenever the parties concerned appear at the Consulate General with all pertinent documents and facts at its disposal for said investigation."

Before stating why we must disagree with the court's conclusion, it will be convenient to deal with respondent's contention that Article X of the Convention barred the court from taking jurisdiction and libelant's contention that Article X gave the Liberian Consul in New York no jurisdiction to hear his claim.

Respondent's contention, based on the "exclusive jurisdiction" phrase in the first sentence of Article X, is readily answered by the words themselves. The "exclusive jurisdiction" of the consular officer relates to "controversies arising out of the internal order of private vessels of his country"; these are described as "cases, wherever arising, * * * pertaining to the enforcement of discipline on board." See, e. g., Korthinos v. Niarchos, 4 Cir., 175 F.2d 730, 732, certiorari denied 1949, 338 U.S. 894, 70 S.Ct. 241, 94 L.Ed. 550. This is not such a case. The consular jurisdiction "over issues concerning the adjustment of wages," provided in the second sentence, not only does not have words of exclusivity but is subject to an express proviso "that such jurisdiction shall not exclude the jurisdiction conferred on local authorities under existing or future laws." If words so clear required commentary, this could be found in the contract between the language of Article X of the Liberian Convention and similar provisions in other treaties, which, like it, are subsequent to the Seamen's Act of 1915, c. 153, 38 Stat. 1164, e. g., art. XXII of the Treaty of June 5, 1928 with Norway, 47 Stat. 2152, and the language in earlier treaties, e. g., art. XIII of the Treaty of July 4, 1827 with Norway and Sweden, 8 Stat. 346, which was continued in art. XI of the Convention of June 1, 1910 with Sweden, 37 Stat. 1485, giving the consul exclusive jurisdiction in wage matters. Libelant's claim, that the consul in New York lacked jurisdiction because libelant was discharged in Galveston, likewise defies the language. The restriction to the consular officer whose district includes the port that the vessel entered is in the first sentence, granting exclusive jurisdiction over controversies arising out of the internal order of the vessel; the phrase "Such an officer" in the second sentence refers back to "A consular officer" in the first sentence and not to the proviso. Libelant thus had a concurrent but not exclusive remedy before the Liberian consul in New York, and the question requiring decision is whether the district judge could properly remit him to it.

In the absence of statute we would unhesitatingly agree with the judge's conclusions that an overburdened district court ought not be required to devote its time to controversies between foreigners who have another convenient forum, see Conte v. Flota Mercante del Estado, 2 Cir., 1960, 277 F.2d 664, and that the circumstances here, namely, that libelant had received his entire basic wage, that the suit comes to trial nearly three years after his discharge in a district many hundred miles distant, and that a consul of the vessel's flag is ready to hear libelant, would justify the court in declining jurisdiction. However, the hypothesis is an unreal one; for here, in contrast to personal injury claims, there are relevant statutes, and we must determine the issue in the light of them.

The statutes are 46 U.S.C.A. §§ 596 and 597. Section 596 requires the master or owner of any vessel to pay a seaman on vessels making foreign voyages his wages within twenty-four hours after the cargo has been discharged or four days after the seaman has been...