Stephen J. MOREWITZ, Administrator d.b.n. of the Estate of
Fotios Kannes, Deceased, Appellant,
v.
ANDROS COMPANIA MARITIMA, S. A., Norfolk House, Frederick
Street, Nassau, Bahamas and Orion & Global Chartering Co.,
Inc., a New York corporation or association as owners and/or
operators of the vessel EVGENIA G., Appellees,
and
Liberian EVGENIA G., formerly Greek Evgenia G., her boats,
engines, tackle apparel, etc., Caribbean Sea Carriers, Ltd.,
a Liberian corporation or association, Callosa Compania
Naviera, S. A., a Panamanian corporation or association,
Capeside Steamship Co., Ltd., an English corporation or
association, United Shipping and Trading Co. of Greece, S.
A. a Greek corporation or association, Andros Maritime
Company Limited, Norfolk House, Frederick Street, Nassau,
Bahamas, Defendants.
No. 79-1034.
United States Court of Appeals,
Fourth Circuit.
Argued Dec. 6, 1979.
Decided Jan. 28, 1980.
Burt M. Morewitz, Newport News, Va. (Herbert Lebovici, New York City, on brief), for appellant.
John R. Crumpler, Jr., Norfolk, Va. (Seawell, McCoy, Dalton, Hughes, Gore & Timms, Norfolk, Va., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, FIELD, Senior Circuit Judge, and MURNAGHAN, Circuit Judge.
MURNAGHAN, Circuit Judge:
Fotios Kannes, a Greek seaman, died at sea near the Philippine Islands aboard the cargo vessel EVGENIA G. on November 26, 1973. Asserting claims (a) for unpaid wages under 46 U.S.C. §§ 596, 597, 599, (b) for damages based on negligence under the Jones Act, 46 U.S.C. § 688 and (c) for damages based on unseaworthiness under the general maritime law, the personal representative (Appellant) commenced the instant suit in the United States District Court for the Eastern District of Virginia in September 1976 against Andros Compania Maritima, S.A., a Panamanian corporation which acted as the general managing agent of the shipowners and Orion & Global Chartering Co., Inc., the American sub-agent, and other defendants.1
After a protracted preliminary skirmish related to the question of whether jurisdiction existed over one or more of Appellant's claims and, if so, whether the district court should exercise the same, the court below held that it lacked jurisdiction over the statutory wage claim since the wage claim was not asserted in good faith and that the Jones Act was inapplicable to the facts of this case. It dismissed the complaint in its entirety. We affirm.2
I.
Appellant's decedent signed a seaman's employment contract on March 2, 1973 in Piraeus, Greece. On March 4, 1973 he went aboard the EVGENIA G. in Italy. During the period from April through October 1973 the EVGENIA G. called at various American ports. The decedent received an advance against future earnings at New Orleans on April 25, 1973 in the amount of $54.78. Despite the provisions of 46 U.S.C. §§ 596 and 599, that amount was withheld from subsequent wage payments. Allegedly certain wages for overtime were not paid to decedent. Appellant further claimed that such unpaid overtime, together with arithmetic errors in decedent's wage accounts, resulted in shortages in decedent's pay during the period from April through October 1973.
Under 46 U.S.C. §§ 596 and 599, a double wage penalty may be assessed in appropriate circumstances against a "master or owner" for the unreasonable withholding of wages. Appellant has sued for such "waiting time" penalties.
Less than two months after decedent's death his heirs received, in Greece, the wages shown by the final wage account to be due to decedent up until the date of his death. The wage account did not reflect the alleged shortages described above. Upon receipt of the wages the heirs executed a release in favor of "the Shipowning Company and everybody concerned on the vessel EVGENIA G." as to any claim for wages. Notwithstanding the release, an additional day's wages were paid to decedent's heirs about the time this action was instituted. Such wages covered employment for March 3, 1973. Although decedent did not go aboard ship until March 4, 1973, his contract of employment stipulated that wages would be paid commencing March 3, 1973. Thus, the September 1976 payment of one day's wages corrected the inadvertent failure to pay wages pursuant to the employment contract.
II.
It is well established that wage claims must be asserted in good faith to support a district court's adjudication of such claims. Fitzgerald v. Liberian S/T Chryssi P. Goulandris,
We do not find erroneous the district court's determination that the release executed by the heirs pretermits a finding that the wage claim has been asserted in good faith. It is true that the heirs had no knowledge independent of that obtained from decedent's employer as to the exact amount of wages due. Yet the contention that the release should be set aside for that reason is untenable. Appellant does not contest the finding below that the circumstances surrounding the release involved no "fraud, duress or unseemly conduct."
Nor may Appellant avoid the bar of the release on the ground that a release of wage claims executed by survivors of a seaman is of that species of seamen's releases as to which strict judicial scrutiny customarily is accorded. Nothing in Korthinos v. Niarchos,
The contention that the payment of the March 3, 1973 wages somehow vitiated the effect of the release is similarly unavailing to Appellant. We agree with the district court that the vitality of the release to avoid an otherwise legitimate contractual liability does not require its invocation under any and all circumstances on pain of losing its protection altogether. Cf. Fitzgerald v. Liberian S/T Chryssi P. Goulandris,
In sum, none of Appellant's contentions designed to overcome the bar of the release, all of which were advanced and rejected below, persuades us to upset the district court's finding that the wage claim is not asserted in good faith.
III.
There remains the question whether the Jones Act applies to this case. We stated in Fitzgerald v. Liberian S/T Chryssi P. Goulandris, supra,
As we agree that no good faith statutory wage claim was presented, it follows that the district court was not required to exercise jurisdiction of plaintiff's remaining claims. E. g., Dutta v. Clan Grahan,
Although the court below cast its decision to decline jurisdiction over the damage claims in terms of forum non conveniens it is clear that the teaching of Rhoditis and of Lauritzen was given full effect. The court recognized that some contacts existed between Appellee Andros, the EVGENIA G. and the deceased seaman, on the one hand and this country, on the other hand. However, it specifically found, inter alia, that (1) Greek law was the law of the flag, (2) the decedent was a resident and citizen of Greece, and (3) Andros' base of operations was not in the United States. As we have noted heretofore, "(A) mong the various factors set forth in Lauritzen, the most important is the law of the flag." Southern Cross Steamship Co. v. Firipis,
Since the decision of the district court that insufficiently substantial contacts exist to warrant application of the Jones Act should not be disturbed, we perceive no need to address Appellees' alternative contention that, neither of them being decedent's employer, each is without the scope of potential liability under the Jones Act.
AFFIRMED.
Notes
Service of process was never obtained as to the other putative defendants among whom is the shipowner, Callosa Compania Naviera, S.A
The same considerations which informed the district court's decision to dismiss the Jones Act claim apply with equal force as to its jurisdiction over the claim under the general maritime law. Moragne v. States Marine Lines, Inc.,
Retention by the district court of wage claims requires the court, absent "special circumstances", to exercise jurisdiction over all claims. See Dutta v. Clan Grahan, supra,
In the present context, the use of "good faith", a term associated with presence or absence of proper motive, may not seem apt when the resolution is in terms of whether the claim is one which will succeed or not. As pointed out in Dutta v. Clan Grahan, supra,
In Dutta v. Clan Grahan, the fact that the wage claims were "weak" was not deemed sufficient to establish lack of good faith. Here the determination goes further, i. e. it is that the wage claims cannot succeed. Such a determination suffices as support for the district court's finding of lack of good faith. Cf. Fitzgerald v. Liberian S/T Chryssi P. Goulandris, supra,
Our action in setting aside the wage settlements in Korthinos was based upon the second proviso of 46 U.S.C. § 597 which states:
* * * Provided further, That notwithstanding any release signed by any seaman under section 644 of this title any court having jurisdiction may upon good cause shown set aside such release and take such action as justice shall require. * * *
See Pacific Mail S.S. Company v. Lucas,
The view that close scrutiny of the release of wage claims is not appropriate in this case is consistent with the "apparent rationale" of 46 U.S.C. § 596:
* * * that seamen not be stranded in foreign ports remote from where they were employed without payment of a significant portion of the amounts due them, so as to obviate their being without funds or under economic compulsion to sign new articles on terms and conditions dictated by the master or owner.
Eaton v. SS Export Challenger,
Other courts, in related circumstances, have emphasized the wardship theory's unique underpinnings. E. g., Capotorto v. Compania Sud Americana de Vapores, Chilean Line, Inc.,
The particularly authoritarian relationship of shipowners and their representatives to seamen and the isolation of the latter from the legal, economic, and psychological support of a landbased community may put the seaman at a serious bargaining disadvantage. * * * Nor do we think special treatment of longshoremen is dictated by other considerations formerly cited to justify the status of seamen as "wards of the admiralty," such as their alleged propensity toward "rashness" and "credulity." * * *
In any event, especially since the court below noted that Appellant did not allege that "the amount of money given in settlement was not a fair and just amount," it is difficult to see how the shift in the burden of proof on the issue of the fairness of the release would alter the district court's finding that the wage claims are not asserted in good faith.
It should be noted that at least in the Fifth Circuit, "strict scrutiny (of seamen's releases) extends to settlements made by relatives of seamen" as to Jones Act claims for injury and death. See Lewis v. S.S. Baune,
The settlement having been fully and explicitly described to the Louisiana court and having received that court's approval, we think that it meets even the careful scrutiny to which settlements and releases under the Jones Act must be subjected.
See also Rabbe v. Universe Tankships,