*1 therefore, importance deter- its
mining materiality. challenges suffi- support the evidence
ciency His challenge
verdict. Ap- is indirect. he
parently, does not contend that
government present witnesses did not
sufficient evidence of extortion him Instead, support conviction. be-
cause of the sordid occupations past many witnesses,
histories of of these
urges should
have been credited.
Questions of fact and the con
comitant issues of credibility are They will
jury. not be on ap disturbed
peal there is no unless substantial evi support
dence them. No show
ing even attempted here. Con
sidering the evidence as we must in the
light most favorable to the government, jury could find beyond a reasonable that appellant
doubt guilty
charged.
Affirmed. al.,
Earl B. LEWIS et
Plaintiffs-Appellees, INC.,
TEXACO Defendant-Appellant.
No. Docket 75-7233. Appeals, States Court of Second Circuit.
Argued Oct.
Decided Dec. *2 McMahon, Jr., York New
James S. Houston, City (Bigham Englar Jones & brief), for de- City, New York fendant-appellant. City (Abra- York Phillips, R. New
Ned Freedman, City, New York ham E. plaintiffs-appellees. brief), for MOORE, FEINBERG Before GRAAFEILAND, Judges. Circuit VAN FEINBERG, Judge: Circuit by 32 seamen an action This arising out statutory remedies for articles shipping a breach Texaco Inc. After defendant employer, Dis- in the United States non-jury a trial District of trict for the Southern Court York, Baker Mot- Judge New Constance reported ley, at 1975 (S.D.N.Y.1974), awarded A.M.C. one month’s tiffs an amount 594, prejudg- wages under 46 fees, but de- ment interest and counsel 596 for nied under 46 U.S.C. § day days’ wages payment two for each appeals. We af- delayed. Texaco grant of counsel except firm fees; issue, remand for fur- ther consideration. few. On Janu- facts are
The relevant signed foreign arti- ary 6, which called for appellant, cles with ship Everglades, Port on its from Florida to and/or ports in Gulf One or more and thence and Panama Caribbean ports on the Pacific Coast one or more States, ex- the Continental bearing following end of the articles Alaska, of Hawaii elusive top: language at the Pacific discharge on the port of final a peri- of the United Coast hereby, seamen do undersigned We (90) days. exceeding od time not signatures himself our each one for given in consideration of set- herewith voyage, complete this The vessel did *3 shipping before the tlements made directed prematurely but instead commissioner, release Master and of the United east coast to the back in wages owners from all claims for foreign January On States. engagement, or terminated, ending voy- respect voyage of this articles were I, Master, also release each do paid were age, plaintiff seamen of the from all undersigned seamen 16-day period wages for the their earned claims, of this release consideration plain- All but six of voyage. of the signed by them. the vessel on a then remained on tiffs voyage. coastwise addition, “M/C,” In stands which consent, mutual was marked as the cause plain- arises out controversy page discharge the same of the equal on “a sum in amount claim for tiffs’ articles. wages” under U.S.C. to one month’s provides: § After receiving the testimony of six signed has an Any seaman who witnesses,1 Judge Motley held that plain agreement and is afterward tiffs were not by barred this release. the commencement charged before First, under Garrett v. Moore-McCor month’s voyage or before one Co., mack 239, 248, earned, fault on wages are without 87 L.Ed. (1942), the burden was on part discharge, and justifying such Texaco to show had had a consent, be entitled without his “full understanding” of un owner, to receive from master der section 594 before releasing them, may have any wages in earned, addition and defendant had not met this burden. one in amount to equal a sum Second, under 46 repro § compensation, and month’s duced in margin,2 “good cause” had satisfactory may, adducing on evidence been shown for setting aside “the osten case, of hav- hearing the court sible mutual consent” to termination of discharged, ing recov- improperly been the voyage. The judge rejected Texaco’s it compensation er as if other arguments and concluded that earned. wages duly plaintiffs were entitled to “a sum court, amount to Texaco claimed that one wages,” In the district month’s pre judgment recover, interest
plaintiffs were not entitled and counsel fees in $5,000. the sum of “discharged though they had been even wages” had
. before one month’s
“earned,”
In
they had con-
this court,
been
because
appellant first argues
they that
discharge,
to the
because
sented
release and mutual consent con-
statutory
by re-
right
had waived their
tained in the shipping articles bars
(cid:127)plaintiffs’
be-
maining
employ,
in defendant’s
claims. Conceding that such
cases as Garrett,
on
application of the statute
and S. S. “Stan-
dard
Bonici” v.
facts was unconstitutional since
Standard Oil Co. of New
damage.
Jersey,
no
tiffs had
fact suffered
F.2d
(2d
1937),
re-
quire the
heavily
allegedly
party
Texaco relied
relying on a seaman’s
by
release to
binding
plaintiffs,
show
the requisite state mind,
January
appellant
when
off the articles
argues that these cases
plaintiff
time,
each
here
because
1971. At
“this is not a
shipowner’s
a column
release at
signature
all but
.a
affixed
Govern-
pertinent part,
2.
judge;
provides:
por-
One witness testified before
depositions
tions of the
of the other five were
. And
when the
is ended ev-
read into evidence.
ery such seaman shall be entitled to the re-
points
emphasizes
out that
merit release.”3
in Garrett
“Our historic na
ship
by
not taken
policy,
legislative
judi
the release was
tional
cial,”
both
by
“generally
but
a United States
sought
owner
which has
at the
present
safeguard
rights,” including
Commissioner
contracts,”
very
terms
document
“wage
“providing
its
summa
shipowner but
ry
leases not
remedies for
breach.” 317 U.S.
According
appellant,
the
therefore,
seamen.
historic
it
upon
the burden
placing
depth
policy
the roots of this
is re
im
state of mind was
flected in the
extensive
quota
show
Court’s
was prima
Story’s opinion
and the release
facie tion from Mr. Justice
proper
coercion,
Gordon,
in the absence
fraud or
Harden v.
11 Fed.Cas.
valid
proof.
(Cir.Ct.Me.1823),
as which
offered no
which enunciated the
Garrett,5
*4
principles applied
basic
The
it is fruitful
whether
not sure
areWe
specifically
also refers
Garrett
sepa-
as
consent
and
release
to consider
of
to the codification
the liberal seamen’s
allows
Section
concepts here.
rate
release rule in 46
which is
in issue
put
to be
“consent”
the seaman’s
quoted
example
note
as an
of
the release
claim and
to his
as a defense
general “policy”
the
protecting
of
sea
as evi-
is offered
by Texaco
against “unjust
men
contracts,
and unreasonable”
ultimately
The issue
consent.
of
dence
246-47,
317 U.S. at
the
has
to whether
down
comes
246.
knowledge
the seamen’s
to show
burden
Finally, the Court in Garrett also re-
With that
acquiescence.
and informed
lied on Harmon v. United
59 F.2d
argument
mind,
to Texaco’s
we turn
(5th
1932),
quoting
the fol-
seamen’s
regarding
concepts
general
lowing
opinion:
from that
here.
not
releases
One who claims that a seaman has
authority does
of
weight
greater
The
signed away his
to what
rights
in law
regarding
rule
general
the
not confine
is due him must
prepared
be
to take
injury
personal
releases
seamen’s
the
sustaining
burden of
the release as
shipowner’s claims
a
“by
taken
fairly
with
fully
made
compre-
office,”
appel
as
shipowner’s
man in
hended
.
seaman
language
of
sweep
claims.4
lant
317 U.S. at
at
252.
It is
and the solicitude
sois
broad
in Garrett
Harmon,
notable that
the Fifth Cir-
argument
that an
plain
so
for seamen
cuit also observed that
in admi
rule
limiting the traditional
for
cannot
releases
This
rule of course
ralty regarding
rigidly ap-
is most
releases
of
plied
discussion
to clauses in shipping
be sustained.
articles
5. At 317 U.S.
presence
ous rules
Section
quoted
en v. Gordon:
Id.
seaman
notwithstanding
mainder
due
incapable
Brief
They
him .
action
with
shown set aside
admiralty;
having
of Coast Guard
[seamen]
for
Defendant-Appellant
under section 644 of this
of the
approval
referred
“the settlement
246-47,
entering
.
justice
jurisdiction
wages
any
are
. Provided
emphatically
release
though
into a valid
such
above, provides vari-
following
which shall
official.
require
may upon
of
release
Texaco,
wages” in the
further,
from
technically
the wards
the Court
contract,
title
.
by any
Inc.,
Hard-
good
That
then
take'
any
tion is
right
situation
able,
inequitable.
is that
sion the court
any
ed
tanto the
proportion
rights
they
young heirs, dealing
wards with their
courts of
trustent with their trustees.
by extraordinary
judicial
compensation
undue
are treated in the same
on one
entirely adequate
privilege
bargain ought
advantage
equity
inequality
bargain
interpretation
side,
expects
weaker
guardians,
for
are accustomed
which are not
bargain,
is
.
with their
has been taken
benefits on the
in the
every
unjust
And on
to be
to the diminution of
party,
part
to be set aside as
of
...
material altera-
and cestuis
terms,
and unreason-
satisfied,
and that
expectancies,
every
manner,
sacrifice of
compensat-
transaction
If there is’
seamen.
any
other,
occa-
treat
pro
que
as
shipping com
sea-
rights
to release
under section
purporting
have,
releases of claims
of such
advise them
men
did not
missioner
only
their attention
wages.
and directed
rights
wage due and that
to the basic
the district to undertake competent of cases.” also claims that the dis Texaco decision, After the district court’s discovery by unduly restricted trict Alyeska Pipeline Supreme decided Court deposi to take the denying its motion Society, Service Co. v. The Wilderness regarding their of all tions 421 U.S. L.Ed.2d at the time of the al “state of mind” (1975). case, the Court held In that consent. The motion leged release and of counsel unjustified an award fees to trial and after long was made before unsuccessfully groups attempt- that had plaintiffs. At deposed two Texaco had of the Alaska ed to restrain construction time, defendant judge permitted that Appeals for the pipeline. The Court shipping commissioner depose ap- District Circuit had of Columbia representative on board and the union on the principle theo- proved such fees provided that sign-off, but ship at each acted that had as a ry groups thereafter, will rule on the “the court general” attempting “private attorney deposi necessity taking further “statutory rights of all citi- to vindicate years the almost two tions.” In followed, 1028-31. The zens.” 495 F.2d at Su- fur- defendant failed to ask for apply, course, 8. This sign voy- would not a new to the six on for who did age. reversed, rejecting “pri preme MOORE, Court Circuit Judge (concurring exception to the attorney general” vate dissenting): allow refusing rule general American I would reverse on ground that the However, the ex attorneys’ fees. Court releases recovery under vitality the continued pressly affirmed I do not believe Texaco § v. At Cole, Vaughan Hall prove required should have been state kinson, at supra. U.S. 258 — mind, since the releases were S.Ct. 1612. presence of a Commis- earlier Citing Alyeska the Court’s represented sioner and the seamen were Rich v. Industrial decision in F. D. Co. supervised a union official who Co., Lumber 417 U.S. sign-off procedures and who was also in (1974), appellant L.Ed.2d 703 with union headquarters. contact must aside. the fee award be set However, even if state of mind were Judge Motley clearly says that properly required proven, to be attorney general private relied First, met its burden. I do not believe awarding counsel theory in fees because wording release can be aver- pointed she out otherwise “the interpreted as excluding 594. The re- § age might pursue seaman” not be able to lease of “all spoke wages” claims for legal remedies. 594; specifically did not invoke how- § Alyeska, In view of we believe ever, testimony clearly Boland’s demon- that the district court should reconsider strated both that the seamen were well the fee To the dis award. extent aware of their under 594 and § trict court on the ef regarded 594 as a claim for § seamen,” “impecunious forts to aid understanding all within their open question award is at least word. the men’s understanding Given statute, Alyeska. under We are not sure that interpretation of the think rely private the district did term “all judge wages” (i. claims for did, theory, e., attorney general through but if she all claims whether earned ac- impermissible. More otherwise) would now be tual man-hours of work or en- over, explanation in view the the compassed days’ pay the 30 penalty pro- line F. common benefit of cases in D. vided for Co., Rich Second, voluntarily these seamen “shifting as a of fees .' .to knowingly supervision entrusted the spread proportionately among the cost representative, class,” see members of the benefited patrolman, very it whose function was Alyeska, 257— that the ration- procedures. patrol- to oversee such That *7 sure we are not lawyer man Mauricio was is not a imma- Cole, supra, applies ale of Hall v. here terial; clearly rep- he was authorized to hand, either. On the other if the district moreover, and, men he resent was court, Atkinson, Vaughan v. relying on knowledgeable probably the most and supra, would have awarded counsel fees to so. competent individual Under Tex- solely based on the recalcitrance of the circumstances it is inconceivable to failing aco in the sums pay due “duped”; me to claim the men were here, questions might tiffs not be the letter my conclusion reinforced relevant. Accordingly, remand which Boland and several other. seamen issue of counsel fees to the district court stating headquarters sent to union Alyeska and to consider the effect Brother met Patrolman Maurice award, if make clear the one basis vessel at time of . payoff is appropriate. Agent consulted with D. George S. affirmed, Judgment except on the is- about whether or not this unlicensed fees, sue of counsel as to the case crew the TEXACO ILLINOIS were is remanded. thirty days penalty pay. entitled to gave George Brother . But beef there was no America, UNITED STATES of pay- possibly penalty pay would Plaintiff-Appellee, p. atB Exhibit (Defendant’s able. 210a) pro- oral regarding Miguel Angel BALLESTEROS-ACU- unpersuasive.
test is inconsistent NA, Defendant-Appellant. Commissioner, presumably No. 75-2464. there disinterested, attested made; suggests letter Boland’s none Appeals, Court of States none; and in view of the there Ninth Circuit. official, presence Dec. sign-off, it is difficult supervision that, any in- there been had believe have Mauricio would tention protest, necessary
neglected to make accepted notations on
commonly
sign-off articles. I depositions, As for the dearth that, might
agree defendant’s However, have more persevering. been Bo- obviously delegated
since the men to act them and
land Mauricio views, un-
express it does not seem views men’s to determine
reasonable repre- their chosen from the actions of Chladek, who sentatives. Even seaman not even read the that he had
stated release, the dele- unequivocally that
said Boland, aI.) e., et in com-
gates (i.
plete meetings, and charge of seamen’s question au- apparently did not
thority arrange the it was out.
manner in which carried attor- respect
With award of fees,
ney’s in the remand. concur