*2 prisonment. This claim was submitted to MANSFIELD, Before VAN GRAAFEI $1,000 jury, appellee which awarded RTH,* LAND H AYNS W O Circuit damages. Since the false arrest claim was Judges. presented a clear-cut factual issue and was fairly jury, portion GRAAFEILAND, to the of the verdict 'Judge. VAN Circuit will not be disturbed. appeal money judgment This is an from a which followed a trial before However, propriety of the false im- Stewart in the United States District Court prisonment award is not the real issue on of New for the Southern District York. appeal. appellee discharged When was part affirm in and reverse and remand We Houston, ship’s Captain he met with the part. and the Port to secure his dis- charge pay. that, Captains Both testified Byzantine appellant,
In Maritime time, $1,082, appellee paid at that his company, Corporation, a Greek was the vessel, D, period net for the between Decem- owner of a merchant Zenovia 31, 1979, January ber largely traded area. which Caribbean 29, 1977, appellee, period for the January On December Gerassi- between $770 Vinieris, citizen, joined 13, 1979, February a Greek mos 1979 and which was the vessel in Jamacia as Chief Mate. It day appellee any last on which did work. undisputed appellee that was not a licensed Although receipts payments for both that, Appellant contends at ship’s officer. by appellee, initialed he testified that he hired, appellee the time he claimed to actually received no officer; appellee be a licensed asserts that only undisputed It is $670 $770. experience he claimed to have had as appellee paid days was not for the five an officer. during ship which the was en route from Houston, during Mobile to which he did no 30, appellee’s joined wife
On December work. Appellant’s him on witnesses testi- board. permitted fied that Mrs. Vinieris was opening In jury, appellee’s to the understanding aboard with the she counsel, stating after his contentions con- Mobile, Alabama, ship
would leave the
cerning payments, said:
Appellee
port.
the first American
denied
course,
claiming,
We are
the amount
understanding
existed.
In
such an
that Mr. Vinieris earned and
event,
Mrs. Vinieris did disembark at
paid.
asking
was not
We are also
for a
an acrimonious dis-
Mobile
the midst of
finding, just
finding,
not an amount
pute
ship’s
and the
between her husband
money,
ship,
the owners of this
Captain.
on
The Zenovia D then continued
D, deliberately
the Zenovia
withheld this
Houston,
Appellee
Texas.
did no work
money
unreasonably,
him
without
leg
journey.
contends
He
reasonable belief that
had the
he was confined to his cabin and
right
any part
money.
to withhold
permitted
to work.
testified
(Emphasis supplied)
appellee
was not confined and
jury, appellee’s
simply
na-
his summation to the
refused to work. Whatever the
differences,
parties’
appellee
ture
counsel continued in the same vein. H4
that,
ship upon its
not Vinieris
was removed from the
arrival
said
whether or
*
Circuit,
Appeals
sitting by designation.
Of the United
for the
States Court
Fourth
vens, J.,
officer,
dissenting).
provides
paid
he “was entitled
That statute
licensed
to be
did,
really
in substance
that he
and that’s
withheld
for
work
cause,
Referring
shipowner
to a without
sufficient
case is about.”
what this
equal
days
“a
gave
appellee’s
the date of
must
sum
to two
voucher which
13, 1979,
February
every day during
payment
each and
discharge
counsel
delayed.”
penalty,
not appel-
This harsh
said:
*3
wages,
modest
is “really
lee’s
claim for lost
discharged.
he was
the date
not
Appellee’s
what this case is about.”
Mobile,
total
discharged in
If he had been
$1,361.08.
unpaid wages
claim for
was
well,
claim
have a
for those
we wouldn’t
penalty
appellee
suing
for which
was
was
explains
wasn’t. That
days.
five
But he
month,
per
appellee’s
voucher,
monthly
twice
why
this handwritten
that
13,
salary,
penalty starting
on
February
February
so
voucher,
they
that
says
22,
continuing
1978 and
infinitum
pay.
ad
until
days’
could save five
written,
paid.
opinion
As
day, it
If it
a lot.
$35
$34
penalty
approximately
amount
they
it so that
they
But
did
could save
$144,000, over 100 times the lost wages
pay.
the jury
gra-
which
was informed was the
He then concluded:
of appellee’s
vamen
claim.
course,
asking
Of
for all the
patent
Because of the
unfairness of a
wages
paid.
due and were
that were
penalty
grossly dispropor-
which can be so
days
That
includes five
triggered it,
to
tionate
the event that
the entire
and that
includes
amount on
attempted
number of courts
and
ameliorate
approximately
the first voucher
$100
penalty’s
by reading equitable
effect
second.
See, e.g.,
time limitations into the statute.
asking
thing
We are also
for one
fur-
Co.,
Navigation
Forster v.
Oro
128
ther,
finding
is a
and
113,
(S.D.N.Y.1954),
affd,
F.Supp.
116-17
wouldn’t have
dollar amount at-
(2d Cir.1955). However,
228 F.2d
in
319
tached to it
this was done—this
Lines, Inc.,
v.
Swain
Isthmian
360
F.2d 81
wages,
withholding of
is what I am talk-
Cir.1966),
(3d
held that those
the Court
who
ing about,
days
as to the five
and as
both
placing
practice
followed this
their
vouchers,
to the
in
was done
place
in
emphasis
wrong
such manner as to amount
arbitrari-
instead with
should concern themselves
ness, unreasonableness,
that it
done
surrounding
factors
the motivation of the
(Emphasis
without
cause.
substantial
shipowner
making
wage
deduction.
supplied)
Supreme
Id.
at 87.
Court has
Because
much,
actuality,
claiming
Vinieris was
adopted
interpretation
literal
wages he
much more than the
had earned
v.
provisions,
penalty
statute’s
Griffin
suing
paid.
and not
He was
under
Lines, supra, 458 U.S.
564,
Oceanic
102
statute,
596, which the district
46 U.S.C.
3245,
S.Ct.
the sole concern
courts
“very
as “horrible” and
described
for what
must be whether and
reason
unfair”,
judges have termed
and other
wages were withheld.
“harsh”,
v. United Greek
Mavromatis
310,
issues,
Shipowners
(1st
regard
these
Corp., 179
F.2d
With
318
change
v.
Cir.1950),
Bassis Universal
“rigor[ous]”,
decision
did
Griffin
Line,
S.A.,
(E.D.N.Y.),
449,
way
“wrong
F.Supp.
459
well-established rule
322
affd,
(2d Cir.1970),
not establish
“puni-
withholding
ful
alone does
it is not Waterman S.S. (3d Cir.1948), penalties F.2d 428 severe involved and that Corp., 166 The Vel Hamlin, 852, (4th himself, Captain, personal L. 40 F.2d 854 Cir. had awareness ma 1930); dispute possible consequences there is a bona of his failure where fide owed, pay. Permitting testify the amount Mer Conte Flota Estado, 664, (2d only important that it was cante Del 277 F.2d 672 Cir.1960), Victoria, him paid, permitting explain 172 without Usatorre v. The (2d Cir.1949), why, F.2d v. whom it was did not Glandzis Callinicos, (2d Captain’s In- 140 F.2d 114-15 Cir. disclose the state mind. 1944); deed, unjustified pettiness an inference of or where there has been an honest judgment regard, in this and bad faith on the error of (2d Cir.), may simply have been created because of Tracy, Thomas 24 F.2d denied, perform “important” 72 his failure to cert. 277 U.S. S.Ct. (1928). duty.1 Before Vinieris could L.Ed. 1005 *4 section, therefore, there recover under this judge’s rejection prof- district showing “conscious miscon had of testimony might fered not have been so ship’s Captain, duct” on the prejudicial judge if the had informed the Line, supra, 322 Bassis v. Universal penal- jury charge in his of the substantial F.Supp. 459, Captain at conduct the ty suing. for which Vinieris was Had the unwarranted, arbitrary, which was unrea so, jurors might judge done the have as- sonable, willful, unjust, and Collie v. Fer Captain sumed that the of 52, 189-191, 55,
gusson, 281 U.S. 50 S.Ct. employer might substantial loss that (1930); 74 L.Ed. v. 696 Glandzis Callini Captain arbitrarily capri- incur if the and cos, supra, 140 F.2d ciously a modest amount of withheld even salary governed and had his conduct ac- Because these are the crucial is cordingly. case, the trial sues instant court policy should have followed liberal jurors “really telling Instead of what admitting evidence directed towards estab about”, judge this case is the district sim- lishing Captain’s subjective state of ply plaintiff was instructed them that No which bore even re mind. evidence claiming failed without suf- that defendant motely kept should have been on this issue ficient cause to that were due interjected jury, tangen unless it from the judge jury him. The told the that “without confusing clearly elements which willful, tial and sufficient cause” meant a unreason- outweighed relevancy. able, its United States arbitrary pay, refusal and Cir.1952); Brandt, 653, (2d 657 general v. 196 F.2d defined those words in terms. His 629, Foshee, 578 F.2d charge v. issue of United States entire on the Cir.1978); (5th given Coleman v. United in seven sen- 632-33 sufficient cause was Cir.1948). 837, (5th States, 167 F.2d 840 Of tences. course, as to his testimony instructing jurors that it was After
beliefs, motives, intent was material they “who have to decide whether de- Kyle, v. 257 and admissible. States United plaintiff suffered dam- fendant is liable and Cir.1958), denied, 559, (2d cert. F.2d 563 case ages”, the court submitted entire L.Ed.2d 301 3 358 79 S.Ct. U.S. interrogatories, by way special them of (1959); Hayes, 477 F.2d United States permitted to do under Federal as it was 1973). (10th 873 Cir. 49(a). However, Rule of Civil Procedure repeated erred, therefore, pre- appellant’s court refused re-
The district court quests that the be informed testifying that he cluding plaintiff’s major claim. supe- penalty which was from his under orders strict Appendix. differing view of the 1. Because of the dissent's record, greater detail in we discuss the record in
1065 deliberately concerning he misled the Relying on what believed to be rule cases, stating the district case was and in nondisclosure antitrust what seeking the blindfold judge “just finding” refused remove that he was he placed jury. cause, had “not insufficient an amount of mon- he rather ey”, sailed close to wind in The district court was mistaken concern- making above. See quoted the statements position ing this Court’s on disclosure Lines, Conway v. Tank Chemical Leaman Bros. Bordonaro Thea- antitrust cases. Inc., Cir.1976). (5th F.2d 930 Inc., tres, Pictures, Inc. v. Paramount (2d Cir.1953), complaint F.2d not, Motivation and intent were pleaded appropriate sections of the course, issues which called for a Clayton Antitrust Acts and Sherman knowledgeably fair determination made. specifically pro- claimed the treble Equally important was the issue credibil- Court, Writing for the vided statute. ity. district denied Judge Clark said: despite a new trial motion for fact that Surely pleadings reference either to the plaintiff” “did not believe governing or to the statute is so usual a have reached a different result. Had jury trials occasion course in as to no known, jurors judge, large as did the how Hence the in the trial comment. recital plaintiff had in the financial stake outcome judge’s charge just hap- had what case, might their reaction have been pened in the former action and what was judge. the same as that A quite appropri- claimed in this suit was weigh credibility should not be asked to *5 ate. only half the facts on the with scale. Moreover, some, theory espoused by cases, In close where affirmance is juries should be informed justice, with inconsistent substantial trial 49(a) in Rule legal effect of their answers disregarded lightly. errors not be cases, subject judicial has of both Co., Bell v. South Cent. Tel. Bickerstaff See, e.g., Lowery scholarly criticism. and 163, (5th Cir.1982); United 169 676 F.2d Clouse, 252, (8th Cir.1965); F.2d 261 v. 348 Kahaner, 459, (2d v. 317 F.2d States 485 Corp., Marine Mississippi v. Porche Gulf denied, 836, 74, Cir.), 375 84 cert. U.S. S.Ct. (E.D.La.1975); 624, Green, F.Supp. 390 632 E.I. du Pont' de (1963); 11 65 L.Ed.2d Jury, 33 Tex.L.Rev. Blindfolding the Co., Berkley v. & Nemours & Co. 620 F.2d Indeed, (1955). early least one at 280-84 (8th Cir.1980). Because we con 1257 rule ac- the nondisclosure has advocate of the errors above discussed can clude that that, knowledged upon study further and case, in this not be harmless treated reflection, position contrary he finds reverse the award loss Miller, Feder- Wright & 9 See preferable. penalty 596 and remand for the section § 2509, Procedure, at 513 al Practice and these The award for new trial on issues. n. 8. wrongful imprisonment is affirmed. who advocate nondisclosure Even those proposition hardly quarrel could APPENDIX issue, that, is at party’s when a intention brief, its counsel page On 6 only jury should make its determination said: considering con after all circumstances respect payment of earned United With See charged. the act nected with Lichota, wages, Captain (6th Gerolimatos 351 F.2d 89-90 States denied, testify prepared were both Cir.1965), Balactaris cert. 86 382 U.S. ship policy (1966). it was strict L.Ed.2d More S.Ct. paid be at operator that all earned over, the most ardent advocate of even discharge. Cap- the time of seaman’s unlikely sup would be noninformation have testified tain Gerolimatos would misinformation. While we policy port received strict that he and other Masters appellee’s counsel here that suggest do not $1000, is, or withholding whatever would seem to possibility. be more of a particularly wages, earned pay orders in American paid off were To me it is incredible that— seamen where im- penalties the severe ports because you saying, Court: All really, failure law for American me, posed it seems to Mahoney, Mr. is that the wages. unfair, earned statute is and I don’t disa- Judge excluded However, trial gree with that for a moment. It seems accordance with [sic], tesimony appropriate date, to me that an cutoff jury should that the ruling least, previous complaint would be the date the wage penalty was a claiming wages; informed filed lost but that isn’t would defendant claim, statute, it, or darn there it is. approximately required Mahoney: I understand Mr. with- wrongfully found if the get it seems to me we into the areas of (A275, wages. plaintiffs held the credibility here where recognition 304) of the defendant— state- supports clearly record into, get Court: The area we our basis clear makes ment really, is, ultimately, assuming conference, robing room During a holding. person other, believes one and not place: took colloquy following then are stuck with the law. Mahoney: Honor, I Your what Mahoney: It occurs to me further, there is little to discuss want find, if I objective, which I wage prob- aspect of this another not, am that I would find it incredible thought hadn’t arose lem that company master, that a or a Gerolyma- talking Captain until I was withholding of the results of tos. wages, would animosity do so out of suggest The Court: whatever is attributed to him. go ahead with the now that we something Court: talk about this when we take the *6 has to evaluate. pick up papers, break to but Incidentially [sic], your proposed he wouldn’t be here. Mahoney: means impressing charge help I was very didn’t me much. That Mr. wages, something him is the concern about the earned we are to have to talk orders, about, always say charge what we and he said “We have about cause, orders, all, unreasonable very strict above what we whatever phrase do, is. wages.” we must must Cherney: said, always have orders He “We from Without substantial Mr. very is important, cause, the owner that this I statutory believe is the exact very penalties.” there are severe language, I but will concede that there very He knew that it was serious mat- are district and circuit court cases which ter. interpret that and I will concede—I have to reread the I here, Griffin case. don’t be- dealing unusually
We are I think changed lieve that the so, Griffin ease credibility question. with a severe standard, although subject that is to re- We have black or white. It seems to me review. goes very credibility it to the heart of the demonstrate to the that the de- says, though, What the Griffin case is unlikely fendant would be most finding supported to with- once there is wages being hold evidentiarily aware of the withholding of a with- [sic] ramifications, cause, severe the severe results out a substantial that there is no failing to do that. discretion in the district court. It would seem to me that Mahoney we are deal- Mr. doesn’t disa- The Court: ing question with such a gree you close of credibil- with about what the Griffin ity, if the dealing says thinks we are says. case or what the statute All too, properly if we do
punished, don’t this. arguing he jury ought is that Cherney: Honor, I will con- Your the penalty Mr. know what it because first sentence the an- cede question credibility bears as to I think the rest of okay, swer is but don’t company whether or not have it is. did, poten- done what faced with the consequences. tial (Record read) Cherney: that, buy I can’t Mr. your begin- The last sentence Court: Honor, because— began, ning know where it but don’t —I just buy indicated I don’t I The Court: me, sentence, it the last seems either, argue you it so need don’t said, I it it captain what the took point. buy the is a horri- I fact owners, but some- instructions something ble You statute. do just thing generally he was good you get with a faith can stuck of, way put it. money. heck a lot of fine, I think the first sentence Thereafter, point Cap- at the crucial Cherney Mr. does. Gerylomatos’s testimony,
tain record Cherney: fine, I think it is Mr. don’t reads as follows: I think it is but admissible.. Q. you any Did gener- have orders in all I meant. Court: al your from the company, employ- Mahoney: Beyond your Hon- Mr. er, paying any about seaman earned or, I think that witness— wages? Cherney: the rest I don’t think I Court: object. think I Mr. I will receive. and answered. already asked has Mahoney: perhaps see Mr. could question. allow the The Court: will question responsive we go further I think before we from the owner. about instructions recess. mid-morning ought to take our responsive, Even it were The Court: have gentlemen, Ladies it. I wouldn’t allow morning, we you told earlier this Mahoney: yes- Suppose I were to ad- may told planning have —I event, sure, his own question terday, I am not dress him importance. today until planning to work awareness of we are adjourn will o’clock about one that not relevant? Would day. that time for Cherney: No. mid-morning recess take will our We problem. It is difficult Court: *7 right now. saying in the really he was what considering, sentence, one are (Jury present) not the we last problem. his own awareness hear answer like to the I’d The Court: Mahoney: I.agree the latter question. Mr. to that it would seem responsive, is but not read) (Record more relevant perhaps me even to have been instructed We The Witness: awareness, his state of mind own own pay full the owners to from time, of— importance very and to be to the seamen any problem I don’t have Court: have don’t in order to on this fact careful very it is saying that Captain the mem- the crew problems with any future pun- I don’t like the word important, but bers. law. ishment or the necessary be even to not But the witness you I think could instruct Me or owners. the instructed that. proce- legal do captain, we have to Mahoney: course, will, do I Mr. responsible will be we dure. Otherwise respectfully that, like to or be I would and the law Immigration before time he consciously aware of the record, except that I think his fact that it pay these consequences is possible awareness of people provided law because the and re- credibility questions. relevant to the quired paid, okay, I will Cherney: take that much. think it is— Mr. I don’t Cherney: counsel The Court: I don’t believe except I to that. Mr. arguing question. I Court: Then don’t think can Mahoney: just preserving amI Mr. go on say something punish- and the record. ment. That’s the same conclusion I returns, shall we have When reached before. him misun- want reporter don’t—I Mahoney: already I told him that. Mr. derstand. think— suggest We I that the fair reading Court: report- Cherney: have Can appellant record shows that the Mr. answer first sentence er read permitted Captain disclose Ge- answer? the witness’ rylomatos had been warned compa- rephrase try to Mahoney: will I ny damages might enormous understand. Captain make and imposed payment if appel- he withheld Cherney: at the cut him off And lee’s without substantial cause. you have you, Say “Thank right point. Moreover, efforts counsel question.” answered Gerylomatos Cap- to frame the (Recess) tain’s answer so abide as to the district room) (In robing ruling court’s does warrant a conten- if, It seems me that The Court: tion that could not have testi- example, I don’t know whether this hap- fied about the had he permit- pened, shipowner, but if I awere I would ted to do so. sending out at least twice a month to my “Look, captains, make sure these MANSFIELD, Judge (dissenting). Circuit people get paid, if because we don’t respectfully I my dissent. view the get them we are hooked with majority erroneously assumes that the dis- enormous because of the stat- key trict court barred a defense witness follows, ute which reads as and want (Gerylomatos) testifying that he was you to know about Griffin case aware, discharged when paid off where there was of liability for appellant, penalties imposed a $6000 claim.” statute for failure all earned wages Why shouldn’t a man be entitled to due. As I read it the record does not testify to if Maybe that’s fact? support assumption appel- indeed should, am more cautious than lant has not on appeal advanced permit but it seems that I to me will argument error preclude that it was him satisfied, say, witness to arewe eliciting testimony such at trial. this is something that he was aware of February 18, majority also establishes a didn’t become new rule aware of of law which obviously lawyer my because his view is ill-advised: that *8 instructed him it is for about thereafter or reversible error a district to didn’t become of it fail to penal because he advise a conse- § by reading quences imposed learned about it of it in the 46 U.S.C. an thereafter, newspapers if admittedly or but at the harsh statute1 for failure to $302,790.40 Unquestionably imposed 1. penalty operator’s wrongful the the of for a vessel Draconian, Supreme pay wages statute can be as the $412.50 Court refusal to in seaman due Contractors, However, recognized Congress in Oceanic him. when mandates such Griffin Inc., heavy penalty 458 U.S. 102 S.Ct. 73 L.Ed.2d as a deterrent we are not at (1982), double-wages liberty upheld penalty circumventing where it to of devise methods its point appel- At wages discharged Vinieris. one cause due. pay without substantial pur- my colloquy In this rule contradicts argued, view counsel with the lant’s might unfairly prej- of statute pose presence, Cap- jury’s court out of the making a from find- udice and deter Gerylomatos be allowed to tes- tain preponderance of the ing supported tify he had from the owner that orders unjustifi- wages have been evidence wages (paying the matter earned on dis- remedy for the' ably proper withheld. The important, that charge) “very was there allowing effects lies not in statute’s harsh (A. 272-73). very penalties” are severe perform- prejudiced to However, eventually counsel con- same fact-finding duty traditional but ance its captain “the at the side bar that ceded Congressional enactment. statute,”2 anything know about the doesn’t majority holds that the district first seeking efforts toward to directed his court erred persuade to instruct Stewart Captain testify- precluding “in § 596, jury regarding which the court re- orders ing very he was under strict fused to do. When the was even- superiors pay from his to earned permitted jury’s state tually to out in- very penalties because of severe presence “any he had orders in whether himself, Captain, had volved and that the your general company, em- possible con- personal awareness any ployer, paying about seaman earned pay.” sequences of his failure to wages,” he testified: 1064). p. (Maj.Op. “The Witness: We have been instruct- however, any has not claimed Appellant, any pay to full ed from owners solely preclusion; argues indeed such to the seamen and to be wages earned against was jury’s verdict very careful on this fact in order to don’t and that the trial weight of the evidence problems with crew have future the verdict aside. judge should have set members. to claim that there Appellant’s failure necessary it is event to be But not ruling evidentiary any erroneous with Me from the owners. or instructed testimony Captain Gerylo- respect legal proce- to do the captain, have The record is surprising. matos not responsible we will be dure. Otherwise Gerylomatos prepared clear that not Immigration and the law or be before testify aware of the too, properly if do punished, we don’t specif- of 46 either provisions U.S.C. at the when he this.” ically generally, time intent, strengthen the deterrent which was "to dire careful with because very very by removing the court's effect the statute effect, all consequences wage assessing penalty.” Id. at latitude in prejudiced. severely very Supreme thought you 102 S.Ct. told me that the Court: Griffin language plain the statute applied the Court anything captain about the stat- doesn’t know penal- any judicial preclude limitation ute. ty period. Mahoney: He doesn’t. Mr. go you are into The Court: So portion majority overlooked this
2. has
you?
record,
reads
follows:
the trial
Mahoney: His statement
to me was that
Mr.
Mike,
Bairaktaris, Captain
"Q Did
orders,
only in this
he received
case
speak
signing
off?
Vinieris
generally,
it is
Yes,
A
he told me—
wages.
plaintiff]: Excuse
for
Cherney
[Counsel
Mr.
right.
all
Court:
me,
conference,
your
Honor
would like a
wrong
Mahoney:
anything
I don’t
see
Mr.
conference,
please,
now.
a side bar
that.
(At
bar)
side
Cherney: Very important
may relate to what we
Cherney:
This
there,
stop right
I still note
fine.
discussing
If Mr. Maho-
inside before.
n
sup-
(Emphasis
my objection
the record."
for
ney
intends
elicit
defendant]
[counsel
*9
plied).
testimony
the effect —be
witness
to
from this
thereupon
newspapers
thereafter,
Stewart
made clear that
or
if
but
at the
testify
if Gerylomatos could
that on Febru-
consciously
time he was
of
aware
discharged
when
ary
the date
he
important
fact that
pay
it was
to
these
Vinieris, Gerylomatos was aware
of
people
provided
because
law
and re-
testify
he could so
that
statute
quired
paid, okay,
they
that
I will
if
testify
he
not so
he
of it
could
learned
take that much.”
lawyer
reading
later from his
in Applying
principle, Judge
Stewart
newspapers.
The court further ruled
properly
Gerylomatos
ruled that
could tes-
Gerylomatos
that
event
would be
tify to the
first
of the answer he had
permitted
testify
to
he
that
knew it was
given
presence
out of
jury’s
but not the
pay
discharged
important to
his
seaman
latter half. The latter half
of
answer
provided
earned
because
law
was not
to
relevant
the issue before the
paid.
be
required
that
Said
court, which
Gerylomatos
was whether
court:
§
substance
596 on Febru-
if,
It seems to me that
“The Court:
18, 1978,
ary
discharged
date when he
example,
for
I
know
don’t
whether this Vinieris. The
half
second
of the answer
happened,
shipowner,
but if I
§
does not refer
“Immigra-
596 but to
sending
out at
be
least twice
tion” and to an unidentified “law” under
‘Look,
my captains,
month to
make sure
“responsible.”
which he
Appel-
would be
get paid,
people
these
because if
don’t
sought
explain
lant’s counsel
this an-
pay
going
get
we are
them
hooked
by volunteering
swer
that the witness “has
with enormous
because
vague
might
“talking
idea” and
be
about
follows,
statute
reads
and I
Gerylomatos, moreover,
Greek law.”3
you
want
know about
Griffin case
made clear that he was
unaware
liability
where there was
statute when he then
before
testified
claim.’
$6000
jury only
superiors
that his orders from his
Why shouldn’t a man be entitled to
pay
were “to
the seamen
full
their
testify
Maybe
that’s the fact?
wages.”
earned
should,
I am
more cautious than I
Thus there is
basis in
no
the record for
permit
but it seems to me
that will
majority’s
assumption
erroneous
that
say,
satisfied,
witness
if we are
that
Captain Gerylomatos
precluded
something
this is
he
was aware of
testifying that he was aware of the sub-
February
1978 and didn’t become
§
stance of 46 U.S.C.
596 when he dis-
obviously
lawyer
aware of
because his
charged Vinieris.4
instructed him
about
thereafter or
didn’t
of it
majority
become aware
because he
next holds that the district
by reading
about it
advising
learned
of it in the
erred in
court
again
majority
pertinent
thing
talking
Here
overlooks a
about —I think he is
about Greek
portion
colloquy
said,
court's
very impor-
law. He
were told it
"We
is
’
counsel:
important.
tant.
know it is
Ciierney:
paid
He
it had
say
(Emphasis
knew
to be
can
Court:
He
that."
requires
paid,
because the law
it to be
that is
supplied).
every
almost redundant.
It is
law of
civi-
country
people
suggestion
lized
who work
4. There is no
Balaktiaris
paid.
would have testified that he was aware of the
thing
going
we are
to be
Court:
participated
when
substance
he
adding
requires
is that
is a
here
there
law that
discharge
Appellant’s
of Vinieris.
counsel never
therefore it
sought
any testimony
to elicit
Balaktiaris
paid.
instructed
subject,
even
nor
that Balaktiaris would
say,
That
I take
what he
testimony
employer
confirm Vinieris'
it.
all
had ordered them to
in full
Mahonf.y:
me,
told
know
Yes. He
‘You
discharge.
at the
seaman
time of
told,
always
only by
compa-
we were
did
informa-
Nor
Balaktiaris volunteer
such
ny,
wages.’
got
have
tion.
vague
any-
He has a
idea. He doesn’t know
*10
§
sum,
consequences
by
agree
penal
imposed
Appeals
with the Court of
informing
without
cause to
failure
substantial
for the Tenth Circuit that
Judge
first
wages
jury
due.
Van Graafeiland
no
would serve
useful function and
suggests that such
was essential
probable consequence
disclosure
its
would be harm-
impression
in this case to
impermissible lowering
counteract
ful—an
of the
in
jury by plaintiffs
with the
counsel
damages.
left
amount of
it was
his summation that the issue before
“Second, it is not
jury
for the
to deter-
only
days’ pay
when in fact the
few
judgment.
mine the amount of a
Its
judgment
of a
jury’s verdict could lead to
compute
function is to
the amount of
larger
imposition
sum
of the
much
after
damages. Congress’s
in
authorization
by
Unques-
penalty provisions
the court.
§ 15 to triple
15 U.S.C.A.
the award of
tionably
placed
the district
in a
court
damages
a matter
applied
of law to be
penalty
statute.
If the
dilemma
court
the district
without interference
penalty provisions were not disclosed to the
jury.
from the
that the award-
fact
possibility
jury,
jury there was
tripled
ed amount will be
has no rele-
acting
the mistaken belief
determining
plain-
vance
the amount a
involved, might have
small sum was
injured by
tiff was
the anti-trust viola-
unjusti-
to decide that
were
tempted
(Footnotes omitted; emphasis
tion.”
If,
hand,
withheld.
on the other
fiably
original.)
pen-
jury
disclosed to the
the sizeable
court
my
principles apply
view these
to the
imposed
would be
in the event of
alty that
present
jury
case. To hold that a
must be
favor,
plaintiff’s
jury
in the
a verdict
penal
of the
consequences
advised
of a
rendering
might
unfairly
be deterred
plaintiff
denigrates
verdict for
We
found
a verdict.
have not
such
intelligence, conscientiousness,
jury’s
authority
jury
to the
must
effect that
integrity.
jury’s
It is not the
function to
possible penal
advised
conse-
be
Congress
decide the
issue.
If
had
might
imposed
under 596 that
quences
desired such an instruction it could have
wrongful-
jury
finds that
if the
statute,
provided for it in the
it did
ly
Faced with the identical issue
withheld.
Nothing precludes
judge
not.
the trial
damages
in civil antitrust suit for treble
emphasizing the importance
§ 15,
Clayton Act,
under the
15 U.S.C.
wage-withholding
jury
issue to the
or from
Riley
Fifth Circuit
Inc. v.
Pollock &
indicating generally
verdict
even
its
Brewing Company, 498 F.2d
Pearl
consequences going beyond the
may have
(5th Cir.1974),
it was
1242-43
held that
But if
modest amount of
at issue.
jury
the trial
inform the
error for
re-
judge properly
instructs the
provision
mandatory damage-tripling
(as
garding
governing principles
of law
statute, stating:
case)
done in this
failure to indicate
primary
supporting our de-
policy
“The
possibility
consequences
of other
tripling
underpinning
is that
cision
treated as
error.
reversible
purpose
itself.
of treble
provision
We have no reason to believe
and en-
is to deter violations
carefully
that the
present
case
did not
courage private
of the anti-
enforcement
apply Judge
follow and
Stewart’s instruc-
justifiable
laws. The
fear of anti-
trust
essentially
The issue was
one of
tions.
plaintiffs
juries
will ad-
trust
If the
credibility.
jury believed the testi-
damage
or find
just the
award downward
mony
plaintiff
and other witnesses
liability,
thwarting Con-
no
therefore
him,
appears
offered
to have been
some notions
gress’s purpose, because of
case,
interrog-
jury’s
to the
answers
to the
One court
plaintiff.
a windfall
supported by
evi-
might
atories were
substantial
suggested
has even
It
damage
upheld.
and should
dence
therefore be
the revelation
the treble
take
upon
disposing
true that
as an
from the court
provision
intimation
damages.
In motion for a new trial
Stewart stat-
the amount of
to restrict
*11
Clouse,
252,
(8th Cir.1965),
ed
have reached a different
348 F.2d
261
that he would
plain
“did not
result since he
believe the
judge
required
none hold that the trial
is
tiff” and
the defendant’s
view,
“found
witnesses
majority
including
Indeed the
do so.
Appellant
appeal
credible.”
bases its
al
expressed
court,
is that
is
statement, arguing
entirely upon
most
prejudicial error
court
for the
to inform the
placed
judge
duty
that it
trial
under
the
See,
jury of
effect of
answers.
e.g.,
its
grant
appellant
trial. Yet
over
a new
Ratigan v. New York Central Railroad
of
looks the balance
Stewart’s re
(2d
Co.,
548,
Cir.1961) (it
291 F.2d
554
is
jury’s
marks: “I think
...
verdict was
questions
“improper ...
to submit
contain-
justified
their
based on
view of the credibil
ing the conclusions
law to be
drawn
ity
They
of the witnesses.
could have be
fact”);
the findings
from
v.
Thedorf
they obviously
plaintiff,
lieved the
did.”
(7th Cir.1956)
190,
237
Lipsey,
F.2d
193
See, e.g.,
Saydjari,
v.
F.2d
Bevevino
574
(court correctly
jury
refused
advise the
676,
Cir.1978) (“the
(2d
685
district court
fact);
legal
finding
as to the
effect of
grant
required
was not
a new trial sim
Inc.,
Bros.,
181
Cate v. Good
F.2d
149
ply
disagreed
jury”);
with the
because
Cir.1950) (court
(3d
correctly withheld in-
Compton
Corp.,
v. Luckenbach Overseas
legal
concerning
principles
formation
(2d
Cir.),
denied,
425 F.2d
1132
cert.
Note,
jury);
Informing
Jury
400
S.Ct.
since the in the com-
plaint. It did not hold that it is error to refuse to advise
penal consequences, which is issue in Similarly, although
this case. one at least permits informing
circuit instructions indirectly
jury directly legal effect response special
of its verdicts F.R. 49(a) interrogatories, Lowery
Civ.P.