Vinieris v. Byzantine Maritime Corp.

• Decision Date: 02 April 1984
• Docket Number: No. 295,D,295
• Citation: 731 F.2d 1061
• Parties: Gerassimos VINIERIS, Plaintiff-Appellee, v. BYZANTINE MARITIME CORPORATION, Defendant-Appellant. Cal.ocket 83-7574.
• Court: U.S. Court of Appeals — Second Circuit

Page 1061

731 F.2d 1061

1984 A.M.C. 2681

Gerassimos VINIERIS, Plaintiff-Appellee, v. BYZANTINE MARITIME CORPORATION, Defendant-Appellant.

Cal. No. 295, Docket 83-7574.

United States Court of Appeals, Second Circuit.

Argued Nov. 14, 1983.

Decided April 2, 1984.

Lawrence J. Mahoney, New York City (Dougherty, Ryan, Mahoney, Pellegrino, Giuffra & Zambito, New York City, of counsel), for defendant-appellant.

Edward Cherney, New York City, for plaintiff-appellee.

Before MANSFIELD, VAN GRAAFEILAND and HAYNSWORTH, ^* Circuit Judges.

VAN GRAAFEILAND, Circuit Judge.

This is an appeal from a money judgment which followed a jury trial before Judge Stewart in the United States District Court for the Southern District of New York. We affirm in part and reverse and remand in part.

In 1977, appellant, Byzantine Maritime Corporation, a Greek company, was the owner of a merchant vessel, the Zenovia D, which traded largely in the Caribbean area. On December 29, 1977, appellee, Gerassimos Vinieris, a Greek citizen, joined the vessel in Jamacia as Chief Mate. It is undisputed that appellee was not a licensed ship's officer. Appellant contends that, at the time appellee was hired, he claimed to be a licensed officer; appellee asserts that he only claimed to have had experience as an officer.

On December 30, appellee's wife joined him on board. Appellant's witnesses testified that Mrs. Vinieris was permitted aboard with the understanding that she would leave the ship at Mobile, Alabama, the first American port. Appellee denied that such an understanding existed. In any event, Mrs. Vinieris did disembark at Mobile in the midst of an acrimonious dispute between her husband and the ship's Captain. The Zenovia D then continued on to Houston, Texas. Appellee did no work on this leg of the journey. He contends that he was confined to his cabin and not permitted to work. The Captain testified that appellee was not confined and that he simply refused to work. Whatever the nature of the parties' differences, appellee was removed from the ship upon its arrival in Houston on February 18, 1978, put on a plane and returned to Greece.

On April 9, 1979, appellee brought this suit. As one cause of action, he alleged that the incidents connected with his removal from the ship constituted false imprisonment. This claim was submitted to the jury, which awarded appellee $1,000 in damages. Since the false arrest claim was a clear-cut factual issue and was presented fairly to the jury, this portion of the verdict will not be disturbed.

However, the propriety of the false imprisonment award is not the real issue on this appeal. When appellee was discharged in Houston, he met with the ship's Captain and the Port Captain to secure his discharge pay. Both Captains testified that, at that time, appellee was paid $1,082, his net wages for the period between December 29, 1978 and January 31, 1979, and $770 for the period between January 31, 1979 and February 13, 1979, which was the last day on which appellee did any work. Although receipts for both payments were initialed by appellee, he testified that he actually received no part of the $1,082 and only $670 of the $770. It is undisputed that appellee was not paid for the five days during which the ship was en route from Mobile to Houston, during which he did no work.

In his opening to the jury, appellee's counsel, after stating his contentions concerning payments, said:

We are claiming, of course, the amount of wages that Mr. Vinieris earned and was not paid. We are also asking for a finding, just a finding, not an amount of money, that the owners of this ship, the Zenovia D, deliberately withheld this money from him unreasonably, without any reasonable belief that they had the right to withhold any part of that money. (Emphasis supplied)

In his summation to the jury, appellee's counsel continued in the same vein. He said that, whether or not Vinieris was a That's not the date he was discharged. If he had been discharged in Mobile, well, we wouldn't have a claim for those five days. But he wasn't. That explains why that voucher, this handwritten voucher, says February 13, so that they could save five days' pay.

                licensed officer, he "was entitled to be paid for the work that he did, and that's really what this case is about."    Referring to a voucher which gave the date of appellee's discharge as February 13, 1979, counsel said
                

If it was $34 or $35 a day, it was a lot. But they did it so that they could save that pay.

He then concluded:

Of course, we are asking for all the wages that were due and were not paid. That includes five days earned wages and that includes the entire amount on the first voucher and approximately $100 on the second.

We are also asking for one thing further, and that is a finding which wouldn't have any dollar amount attached to it that this was done--this withholding of wages, is what I am talking about, both as to the five days and as to the vouchers, that that was done in such a manner as to amount to arbitrariness, unreasonableness, that it was done without substantial cause. (Emphasis supplied)

In actuality, Vinieris was claiming much, much more than the wages he had earned and not been paid. He was suing under a statute, 46 U.S.C. Sec. 596, which the district judge described as "horrible" and "very unfair", and other judges have termed "harsh", Mavromatis v. United Greek Shipowners Corp., 179 F.2d 310, 318 (1st Cir.1950), "rigor[ous]", Bassis v. Universal Line, S.A., 322 F.Supp. 449, 459 (E.D.N.Y.), aff'd, 436 F.2d 64 (2d Cir.1970), and "punitive", Dendrinos v. City of New York, 86 F.Supp. 688, 690 (S.D.N.Y.1949), and which may produce results that are "both absurd and palpably unjust", Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 586, 102 S.Ct. 3245, 3258, 73 L.Ed.2d 973 (1982) (Stevens, J., dissenting). That statute provides in substance that, if wages are withheld without sufficient cause, the shipowner must pay "a sum equal to two days pay for each and every day during which payment is delayed." This harsh penalty, not appellee's modest claim for lost wages, is "really what this case is about." Appellee's total claim for unpaid wages was $1,361.08. The penalty for which appellee was suing was $2,000 per month, twice appellee's monthly salary, the penalty starting on February 22, 1978 and continuing ad infinitum until paid. As this opinion is being written, the amount of the penalty is approximately $144,000, over 100 times the lost wages which the jury was informed was the gravamen of appellee's claim.

Because of the patent unfairness of a penalty which can be so grossly disproportionate to the event that triggered it, a number of courts attempted to ameliorate the penalty's effect by reading equitable time limitations into the statute. See, e.g., Forster v. Oro Navigation Co., 128 F.Supp. 113, 116-17 (S.D.N.Y.1954), aff'd, 228 F.2d 319 (2d Cir.1955). However, in Swain v. Isthmian Lines, Inc., 360 F.2d 81 (3d Cir.1966), the Court held that those who followed this practice were placing their emphasis in the wrong place and that they should concern themselves instead with the factors surrounding the motivation of the shipowner in making a wage deduction. Id. at 87. Because the Supreme Court has adopted this literal interpretation of the statute's penalty provisions, Griffin v. Oceanic Lines, supra, 458 U.S. 564, 102 S.Ct. 3245, the sole concern of the courts must be whether and for what reason wages were withheld.

With regard to these issues, the decision in Griffin did not change in any way the well-established rule that "wrongful withholding alone does not establish the absence of sufficient cause" under section 596. Larkins v. Hudson Waterways Corp., 640 F.2d 997, 999 (9th Cir.1981). The punitive penalty of section 596 should not be imposed where payment is withheld in good faith under a reasonable belief that Because these are the crucial issues in the instant case, the trial court should have followed a liberal policy in admitting evidence directed towards establishing the Captain's subjective state of mind. No evidence which bore even remotely on this issue should have been kept from the jury, unless it interjected tangential and confusing elements which clearly outweighed its relevancy. United States v. Brandt, 196 F.2d 653, 657 (2d Cir.1952); United States v. Foshee, 578 F.2d 629, 632-33 (5th Cir.1978); Coleman v. United States, 167 F.2d 837, 840 (5th Cir.1948). Of course, testimony by the Captain as to his beliefs, motives, and intent was material and admissible. United States v. Kyle, 257 F.2d 559, 563 (2d Cir.1958), cert. denied, 358 U.S. 927, 79 S.Ct. 312, 3 L.Ed.2d 301 (1959); United States v. Hayes, 477 F.2d 868, 873 (10th Cir.1973).

it is not due, Bender v. Waterman S.S. Corp., 166 F.2d 428 (3d Cir.1948), The Velma L. Hamlin, 40 F.2d 852, 854 (4th Cir.1930); where there is a bona fide dispute as to the amount owed, Conte v. Flota Mercante Del Estado, 277 F.2d 664, 672 (2d Cir.1960), Usatorre v. The Victoria, 172 F.2d 434, 444 (2d Cir.1949), Glandzis v. Callinicos, 140 F.2d 111, 114-15 (2d Cir.1944); or where there has been an honest error of judgment in this regard, The Thomas Tracy, 24 F.2d 372, 374 (2d Cir.), cert. denied, 277 U.S. 595, 48 S.Ct. 530, 72 L.Ed. 1005 (1928). Before Vinieris could recover under this section, therefore, there had to be a showing of "conscious misconduct" on the part of the ship's Captain, Bassis v. Universal Line, supra, 322 F.Supp. at 459, conduct by the Captain which was arbitrary, unwarranted, unreasonable, unjust, and willful, Collie v. Fergusson, 281 U.S. 52, 55, 50 S.Ct. 189-191, 74 L.Ed. 696 (1930); Glandzis v. Callinicos, supra, 140 F.2d at 115.

The district court erred, therefore, in precluding the Captain from testifying that he was under very strict orders from his superiors to pay earned wages because of the very severe penalties involved and that the Captain, himself, had a personal...