Petition for Writ of Certiorari — Raby v. M/V Pine Forest

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a4 Supreme Court, mn

WV FILED

90-14 30 MAR 12 199)

NO. OFFICE OF THE SLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

NELSON R. RABY, et al.

Petitioners,

VERSUS

M/V PINE FOREST, In Ren,

DELICA SHIPPING, 8.A., and

INUI STEAMSHIP CO., LTD.

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COUNSEL OF RICHARD J. DODSON

RECORD: COUNSEL OF RECORD

LAW OFFICES OF RICHARD J. DODSON

628 North Boulevard

Baton Rouge, Louisiana 70802

(504) 344-0633

OF COUNSEL: ATHNASSIOS N. YIANNAPOULIS

Tulane University Law School

6801 Freret st.

New Orleans, La 70118

(504) 865-5984

Counsel for Petitioners

If.

QUESTIONS PRESENTED

Did the Ninth Circuit Court of Appeal err

when it provided that in a suit under the

Seaman's Wage Statute, 46 U.S.C. § 10313,

the shipowner and/or master may deposit

into the registry of the court all past

due back wages in order to comply with

the terms of the statute that "the master

shall pay to the seaman" the wages due,

and by doing such toll the accrual of

penaity wages?

Did the Ninth Circuit err in holding that

uncer 46 U.S.C. § 10313 accrued penalty

wages do not need to be tendered, either

actually or into the registry of the

court, along with back wages due to toll

the further accrual of penalty wages?

LIST OF AL OCEEDING

et ers

Nelson R. Raby, Teofanis F. Roz, Apolonio H.

Torreliza, Leo C. Ajero, Teodoro R. Rabie,

Modesto A. Berido, Marcelo G. Suarez, Jr.,

Miguelito A. Cabales, Teodoro T. Marquez,

Leonardo B. Bonnit, Gervasito P. Laxina,

Hermenigildo Banogon, Camilo A. Alvarado, S.

Galua, Bonifacio C. Tabada, Can L. Machete,

Francisco F. Yabo, Guelberto A. Bete, G.

Villaruel, Russell L. Silrerio, and Mario D.

Cabiltan

Counse c°] e ers

Richard J. Dodson

Law Offices cf Richard J. Dodson

628 North Boulevard

Baton Rouge, Louisiana 70802

(504) 344-0633

Athnassios N. Yiannapoulis

of counsel

Tulane University Law School

6801 Freret St.

New Orleans, Louisiana 70118

(504) 865-5984

Respondents

M/V Pine Forest, in rem, Delica Shipping, S.A.,

and Inui Steamship Co., Ltd.

Counsel for Respondents

Paul N. Wonacott

Kathleen McKeon

Wood, Tatum, Mosser, Brooke & Landis

1001 Southwest Fifth Avenue, 13th floor

Ist OF P Es PROCEEDING CONTINUED

Portland, Oregon 97204-1129

(503) 224-5430

Joseph S. Stacey

LeGros, Buchanan, Paul & Whitehead

2500 Columbia Center

701 Fifth Avenue

Seattle, Washington 98104-7098

(206) 623-4990

iii

TABLE OF CONTENTS

Questions Presented

List of All Parties to Proceeding

Table of Contents

Table of Authorities

Proceedings and the Case Below

Jurisdictional Statement

Statutes Relied Upon

Statement of the Case

Argument in Favor of Granting

Petitioners' Application for Writs

Conclusion

Appendices:

Opinion of Court of Appeal for

the Ninth Circuit of January 17,

1991, Denying Appellee's Petition

for Rehearing with Suggestion for

Rehearing En Banc

Opinion of Court of Appeal for

the Ninth Circuit of October 29,

1990, Vacating the District

Court's Supersedeas Bond and

Ordering Bond to Be Reset in

Accordance with its Opinion

TABLE OF CONTENTS CONTINUED

Page

Judgment and Findings of Fact 34

and Conclusions of Law rendered

on August 6, 1990, by the United

States District Court for the

Western District of Washington

at Tacoma

46 U.S.C. § 10313 64

Certificate of Service 68

TABLE OF AUTHORITIES

Cases: _Page

American Foreign S.S. Co. v. 9

Matise, 423 U.S. 150 (1975)

Caribbean Federation Lines v. 16

Dahl, 315 F.2d 370

(5th Cir. 1967)

Chung Yong Il. v. Overseas 12, 24, 16,. 28

Navigation Co., Ltd., 774 F.2d 33, 20, 6a

1043 (llth Cir. 1985)

The Fletero v. Arias, 206 F.2d 16

267 (4th Cir. 1953)

Collie v. Ferguson, 281 U.S. 52 9

(1930)

Forster v. Oro Navigation Co., 16

128 F.Supp. 113 (S.D.N.Y. 1954),

aff'd. at 228, F.2d 319 (2d Cir.)

Gerber v. Spencer, 278 F.886 16, 20

(9th Cir. 1922)

Greenhow v. Secretary of Health and 17

Human Services, 863 F.2d 633, 636

(9th Cir. 1988)

Griffin v. Oceanic Contractors 10, 12

Inc., 458 U.S. 564, 102 S.Ct. 9, 11,15

3254, 73 L.Ed.2a 973 (1982)

Mandelin v. Kenneally, 11 F.2d 344 16

(4th Cir. 1926).

Matise v. American Foreign S.S. Co., 13, 16

488 F.2d 469 (9th Cir. 1974).

TABLE OF AUTHORITIES CONTINUED

McCrea v. U.S., 294 U.S. 23 (1953) 9

, “=~ U.S. <---, 10

111 S.Ct. 317 (1990)

ific Mai , .. ih,

241 U.S. 245 (1916)

, 190 U.S. 169 9

(1903)

V Pi 1

’

Civil No. 90-5038T, 1990 AMC 2441,

(W.D.Wash. 1990)

by v V

918 F.2d 80 (9th Cir. 1990) 1

Sa Vv ivebank, 134 F.Supp. 16

530 (E.D.Va. 1955)

Southern Cross $.S. Co. v. Firipis, 10, 20, 11

285 F.2d 651 (4th Cir. 1960), a>, &9, 22

cert. denied, 365 U.S. 869 (1961)

Strathearn S.S. Co. v. Dillon, 5, 9

252 U.S. 348 (1920)

Swain v. Isthmian Lines, Inc., 16, ia, 26

360 F.2d 81 (3rd Cir. 1966) Fo a2a¢ 20, A&P

8 H

28 U.S.C. § 1254 2

28 U.S.C. § 2101(e) 8

28 U.S.C. § 1331 4

vii

28 U.S.C. § 1333 4

46 U.S.C. § 10313 2, 4, 6, 8, 10, 12, 146, &&

Rules:

Federal Rule of Appellate Procedure,

Rule 8 2, 7

Local Rule 27.3 2

Rules of the Supreme Court,

Rule 10 8

Rule 11 8

Federal Rules cf Civil Procedure,

Rule 67 7

Other:

Congressional Record Senate

October 22, 1915 5

viii

PROCEEDINGS AND THE CASE BELOW

The district court opinion is designated as Raby

v. M/V Pine Forest, Civil No. 90-5038T, reported

at 1990 A.M.C. 2441 (W.D.Wash. 1990); on

supervisory writs to the United States Court of

Appeal for the Ninth Circuit, Raby v. M/V Pine

Forest, No. 90-35618, reported at 918 F.2d 80

(9th Cir. 1990).

JURISDICTIONAL STATEMENT

Petitioners seek review of an order of the

United States Court of Appeals for the Ninth

Circuit handed down on O’tober 29, 1990,

vacating the district court's supersedeas hond

and order that the bond be reformed in

accordance with its opinion thereof.

Petitioners filed in the Ninth Circuit Court of

Appeals a Petitioner for Rehearing with

Suggestion for Rehearing En Banc, on November 9,

1990. That petition and the suggestion were

denied on January 17, 1991. Jurisdiction of

this Honorable Court is predicated upon 28

U.S.C. § 1254, writs of certiorari to United

States Courts of Appeal.

STATUTES RELIED UPON

The issue brought before this Court is not

one of constitutional consideration, but is

interpretation of the provisions of 46 U.S.C. §

10313 of the Shipping Code.

46 U.S.C. § 10313, in pertinent part (and set

forth in its entirety in the Appendix at Page

23) reads:

"(f) At the end of a voyage, the master shall

pay each seaman the balance of wages due the

seaman within 24 hours after the cargo has been

discharged or within 4 days after the seaman is

discharged, whichever is earlier. When a seaman

is discharged and final payment of wages is

delayed for the period permitted by this

subsection, the seaman is entitled at the time

of discharge to one-third of the wages due the

seaman.

(gq) When payment is not made as provided

under subsection (f) of this section without

sufficient cause, the master or owner shall pay

to the seaman 2 days' wages for each day payment

is delayed. ...

(i) This section applies to a seaman on a

foreign vessel when in a harbor of the United

States. The courts are available to the seaman

for the enforcement of this section."

STATEMENT OF THE CASE

Plaintiffs, 21 Filipino seamen who served

aboard the vessel the M/V Pine Forest, a bulk

carrier, flying the flag of Vanuatu, instituted

this action in the United States District Court

for the Western District of Washington for un-

paid wages and statutory penalties pursuant to

46 U.S.C. § 10313, as well as other claims not

the subject of the opinion of the appellate

court complained of nor this petition for writ

of certiorari. Named Defendants are the vessel

M/V PINE FOREST, in rem, and its owners and

operators, Inui Steamship Co., Ltd., and Delica

Shipping, S.A. The jurisdiction of the district

court in this matter was based upon 28 U.S.C. §

1331, federal question jurisdiction, for claims

arising under 46 U.S.C. § 10313 and 28 U.S.C. §

1333, admiralty and maritime jurisdiction.

Defendants were engaged in the practice of

keeping two sets of books or wage records, spec-

ifying two entirely different rates of pay, all

in violation of United States, Vanuatu, and

' Upon the arrest of the

international law.

vessel, Defendants partially paid Petitioners

the wages stipulated in the shipping articles

which were subject of the suit, and then prompt-

ly counterclaimed for the return of these wages.

'The purpose of keeping double books

was to cause seamen's unions and port

authorities around the world to believe

that the seamen on board were being paid

wages in accordance with the shipping

articles setting forth union wage scales,

when in fact they were being paid as

little as one-fourth of that amount. This

practice gave defendants an unfair compet-

itive advantage over United States ship-

owners, in contravention of the express

purpose enunciated in making the wage

statutes of 1915 applicable to foreign

seamen:

"First, to give freedom to

seamen and improve their cond-

itions; second, to promote

safety of life at sea; third,

to equalize the wage cost of

operating vessels, foreign and

domestic, taking cargos or

passengers from ports of the

United States."

Congressional Record-Senate, October 22,

1915 at 5748. See also Strathearn S.S.

Co. v. Dillon, 252 U.S. 348 (1920).

The trial of this matter was held on May 21

through 23, 1990. The trial court rendered

judgment on August 6, 1990, finding that the

Defendant vessel and its owners, Delica

Shipping, S.A., and Inui Steamship Co., Ltd.,

were in arrearages for wages due and that the

wages were withheld without sufficient cause in

violation of 46 U.S.C. § 10313. Judgment was

rendered in the total sum of $32,657,006.00. On

August 8, 1990, Defendants moved for a

supersedeas bond to stay execution of the

judgment pending appeal to the United States

Court of Appeal for the Ninth Circuit. Pursuant

to this motion, the district court set the

supersedeas bond on August 10, 1990. Defendants

filed a Notice of Appeal with the United States

Court of Appeal for the Ninth Circuit on August

14, 1990, and an Emergency Motion under Circuit

Court Rule 27.3 on August 15, 1990, asking that

they reset the supersedeas bond under Federal

Rule of Appellate Procedure, Rule 8. The Ninth

Circuit, by order on October 29, 1990, vacated

the district court's supersedeas bond and

ordered the bond to be reset in accordance with

its opinion thereof. Plaintiffs filed in the

Ninth Circuit Court of Appeal a Petition for

Rehearing with Suggestion En Banc on November 9,

1990, on the basis of the issues of law

complained of herein. That Petition for

Rehearing with Suggestion En Banc was denied.

AR FAVOR OF G NG

PETITIONERS' APPLICATION FOR WRITS

Rule 10 of the Rules of the Supreme Court

provides that one of the special and important

reasons for granting a writ of certiorari to

review a court of appeal decision is when a

United States court of appeal has rendered a

decision in conflict with the decision of

another United States court of appeal on the

same matter. Petitioners' request review by

this Honorable Court on this basis.

Rule 11 of the Rules of the Supreme Court

provide that a petition for writ of certiorari

to a U.S. court of appeals prior to a final

judgment will be granted only upon a showing

that the case is of such imperative public

importance as to justify deviation from normal

appellate practice and to require immediate

settlement in this Court. 28 U.S.C. § 2101(e)

provides that there is no time delay for taking

a writ pursuant to Rule 11. Plaintiffs

represent that for the following reasons it is

imperative that this Honorable Court correct the

growing discrepancies in intercircuit decisions

regarding application of 46 U.S.C. § 10313, all

as shown below.

This Honorable Court has granted certiorari

on numerous previous occasions to resolve

questions involving the the myriad of

interpretations of 46 U.S.C. § 10313 and its

predecessors created by the courts of appeal.?

The latest attempt to direct the courts of

appeal on the uniform application ot this

statute was in Griffin v. Oceanic Contractors,

2nc., 458 U.S. 564, 73 L.Ed.2d 973, 102 S.Ct.

3245 (1982) .3

Interpretations and statutory constructions

of 46 U.S.C. § 10313 were already in conflict

among the circuits prior to the Ninth Circuit

opinion complained of herein. The opinion of

“Patterson v. Bark Eudora, 190 U.S.

169 (1903); Pacific Mail §.S. Co. v.

Schmidt. 241 U.S. 245 (1916); Strathearn

S.S._ Co. v. Dillon, 252 U.S. 348 (1920);

McCrea v. U.S., 294 U.S.23 (1935); Collie

v. Fergusson, 281 U.S. 52 (1930); American

Foreign S.S. Co. v. Matise, 423 U.S. 150

(1975).

“In Griffin, this Court granted

certioruri for the sole purpose of

deciding whether or not the penalty wages

provided under 46 U.S.C. § 596 (now 46

U.S.C. § 10313) could be equitably tolled

by the courts. That answer was in the

negative, as "(t]he words chosen by

Congress, given their plain meaning, leave

no room for the exercise of discretion.

» * Ja,, at 570.

the Ninth Circuit of October 29, 1990,

Significantly widens the conflict and now

renders seamen's wage litigation to results

depending to a great extent on the location of

the suit. This Honorable Court in Miles v. Apex

Shipping, --- U.S. ---, 111 S.Ct. 317 (1990),

noted the overriding concern for uniformity and

application of maritime matters. Along with the

desire for uniform approach in maritime matters,

there is the concomitant desire for uniformity

of application of federal statutes. 46 U.S.C.

§ 10313 should be applied uniformly, both as a

matter of nationally imposed legislation and a

rule of maritime law.

This Honorable Court noted in Griffin v.

Oceanic Contractors, Inc., supra, and the Third

and Fourth Circuits in Swain v. Isthmian Lines,

Inc., 360 F.2d 81 (3rd Cir. 1966), and

Southern Cross S.S. Co. v. Firipis, 285 F.2d 651

(4th Cir. 1960), cert. denied, 365 U.S. 869

(1961), provided that the unlawfully withheld

wages could be placed in the hands of the court

to toll the running of the penalty period. Both

this Court in Griffin, supra, and the Fourth

Circuit in Southern Cross, supra, applied this

rule as an interpretation of this Court's

decision in Pacific Mail S.S. Co. v. Schmidt,

241 U.S. 245 (1916), which held that penalty

wages did not accrue during appeal if the appeal

was taken on reasonable grounds.* The cpinion

in Griffin seemed merely to note these decisions

and not necessarily endorse them nor disturb

their actual holdings as to the steps necessary

to terminate the accrual of penalty wages.°

‘If the Southern Cross decision is

merely an interpretation of this Court's

decision in Pacific Mail, then deposit

into the registry of the court, as was

done in Southern Cross must come after

judgment, and during the pendency of

appeal.

°In Southern Cross, supra, the court

stated that penalty wages would no longer

accrue if wages and accrued penalty wages

were deposited in the court; in Swain,

Supra, the court stated that the accrual

of penalty wages terminated upon the

Subsequently, after Griffin, the Eleventh

Circuit in Chung Yong Il v. Overseas Navigation

Co., Ltd., 774 F.2d 1043 (11th Cir. 1985), held

that this Honorable Court in Griffin did not

mean to endorse the decisions of the Third and

Fourth Circuits and, accordingly, found the

rationale therein that a holding that wages may

be deposited into the registry of the court

prior to final judqment was contrary to the

intent of Congress in drafting 46 U.S.C. §

10313. The Eleventh Circuit held that the words

"The master shall pay to the seaman" were an

individualized instruction which required that

the wages be placed physically in the hands of

the seaman. The court of appeal therein held

that constructive tender, through the registry

of the court, was not allowed to cease the

running of penalty wages. The Eleventh Circuit

actual payment of wages or the deposit of

wages in the court, but cited Southern

Cross with approval.

in so doing fourd that neither the language of

the statute nor the underlying’ policies

supported the suggestion that a vessel owner,

whose position borders on the frivolous, could

continue to litigate and withhold wages without

fear of an increased penalty.® Further, the

Court of Appeal recognized that it was precisely

the possibility that large penalties would

accrue that should motivate a shipowner to

exercise care in computing the wages due to a

seaman.

As such, the decision in the Eleventh Circuit

in Chung Yong Il, supra, is clearly in conflict

with the Third and Fourth Circuits to the extent

that they allowed deposit into the registry of

the court of a seaman's wages. The Honorable

‘The presumption of course is that the

wage claim is frivolous. If the wage

claim is not frivolous, then, according to

the provisions of 46 U.S.C. § 10313, the

withholding of wages was with sufficient

cause and therefore penalty wages would

not be applied at all. Thus, no need to

toll the running of penalties.

Justice White of this Court, noting this

conflict, dissented in the denial of writs to

Chung Yong Il.

The Ninth Circuit, when presented with the

identical question presented to the Third,

Fourth, and Eleventh Circuits, took a middle of

the road approach adopting in full neither the

rationale of the Third and Fourth Circuits, nor

the Eleventh Circuit, thus creating a three way

split among the circuits on the interpretation

of 46 U.S.C. § 10313. This was pointed out to

the Ninth Circuit by Plaintiffs in a Petition

for Rehearing with Suggestion for Rehearing En

Banc. However, the Ninth Circuit refused to

grant rehearing or rehearing en banc.

The Ninth Circuit opinion can be summarized

as follows:

A shipowner or master may deposit into the

registry of the court the back wages held

without sufficient cause in order to toll the

accrual of penalty wages under 46 U.S.C. §

10313(g). The deposit into the registry of the

court is authorized both as a means of tolling

the penalty wages on appeal and as a substitute

for the express requirement that the wages be

tendered unconditionally by the master to the

seaman. This is arguably the position taken

by the Third and Fourth Circuits in Swain,

supra, and Southern Cross, supra.® This

rationale, however, was specifically rejected by

the Eleventh Circuit in Chung Yong Il, supra.

Thus, the conflict.

Underlying this issue is the requirement long

held in other circuits, as well as formerly held

in the Ninth Circuit, that the tender of wages

~~, the master shal! pay each

seaman . . ." 46 U.S.C. § 10313, paragraph

(f).

8The Third and Fourth Circuits may

actually limit their decisions to issues

of appeal, since they are but

interpretations of Pacific Mail, supra.

See Griffin, supra, at 574, n.9.

by the master to the seaman must_ be

unconditional.

The rule that a tender of wages’ be

unconditional is found in the Second, Fourth,

Fifth, formerly the Ninth, and the Eleventh

Circuits. See Forster v. Oro Navigation Co.,

128 F.Supp. 113 (S.D.N.Y. 1954), aff'd. at 228

F.2d 319 (2d Cir.); Mandelin v. Kenneally, 11

F.2d 344 (4th Cir. 1926); The Fletero v. Arias,

206 F.2d 267 (4th Cir. 1953); Samad _v. The

Etivebank, 134 F.Supp. 520 (E.D.Va. 1955);

Caribbean Federation Lines v. Dahl, 315 F.2d 370

(5th Cir. 1967); Gerber v. Spencer, 278 F.886

(9th Cir. 1922); Matise v. American Foreign

Steamship Co., 488 F.2d 469 (9th Cir. 1974),

reversed on other grounds, 423 U.S. 150, 46

L.Ed.2d 354, 96 S.Ct. 410 (1975); Chung Yong Il

v. Overseas Navigation, supra. The two Ninth

Circuit cases (Gerber, supra, and Matise, supra)

are constructively overruled by the Ninth

Circuit's decision complained of herein.’

Rule 67 of the Federal Rules of Civil

Procedure allowing deposit into the registry of

the court was amended in 1983 to allow the party

depositing the sum to continue to claim an

interest in all or part of it. See the Advisory

Committee Notes to Rule 67, 1983 Amendment.

Since the litigant can continue to assert an

interest in the funds placed on deposit pursuant

to the rule of the Third, Fourth, and Ninth

Circuits, the tender arguably becomes condition-

al, from 1983 forward, inasmuch as the seaman

cannot withdraw them from the registry of the

*The Ninth Circuit, in violation of

its own local rule, overruled these two

prior Ninth Circuit panel opinions without

a rehearing en banc and without even the

benefit of discussion of these two prior

cases. Federal Rule of Appellate

Procedure 35(a); Greenhow v. Secretary of

Health and Human Services, 863 F.2d 633,

636 (9th Cir. 1988). This was pointed out

by Petitioners to the Ninth Circuit Court

of Appeal which denied Plaintiffs'

Petition for Rehearing without comment.

court. The very fact that a seaman has to go

into court to litigate for his properly earned

wages was considered a violation of 46 U.S.C. §

10313 as recognized by the Eleventh Circuit in

Chung Yong Il, supra. Correspondingly, a

counterclaim by the defendant to retrieve wages

already paid after institution of suit also

makes the tender unconditional under’ the

rationale of Chung Yong Il. Thus, another

conflict between the circuits exists as to the

nature of deposit into the court and whether or

not it suffices for an unconditional tender as

required by the Second, Fourth, Fifth, and

Eleventh Circuits.

Secondly, the Ninth Circuit held that penalty

wages that had accrued to date need not be

deposited into the registry of the court to toll

the further accrual of penalty wages. This

holding is arguably in accordance with the

decision of the Eleventh Circuit in Chung Yong

Il _v., supra. However, it is expressly in

conflict with the Third and Fourth Circuit

decision in Southern Cross, supra, which held

that both accrued back wages and accrued penalty

wages must be deposited into the registry of the

court to toll further accrual of penalties.

Hence, the additional conflict among’ the

circuits.

CONCLUSION

Petitioners submit that the opinion of the

Ninth Circuit herein complained of is based upon

errors of law. Mcre importantly, for purposes

of this Petition for Writ of Certiorari, the

opinion of the Ninth Circuit is in conflict with

not just one, but as many as four circuits

around the country on any given issue. The

conflicts created by the Ninth Circuit's opinion

complained of herein jeopardizes the uniformity

heretofore created on the issues of uncondition-

al tender and whether or not wages and/or

penalty wages must be deposited into the

registry of the court to toll further accrual of

penalty wages.

The desire that admiralty and maritime laws

be applied uniformly, whether a ship sails the

Atlaritic or the Pacific Ocean, is great. It

would ultimately be damaging to the overall

structure of the maritime law if the outcome of

a case depended upon which port and seaboard a

vessel entered. The vast territorial majority

of the eastern and southern seaboard of the

United States, the Second, Third, Fourth, Fifth,

and Eleventh Circuits, are in one way or another

in conflict with the Ninth Circuit's decision

complained of herein. The opinion of the Ninth

Circuit places it in juxtaposition to the

holdings of Swain, supra, and Southern Cross,

supra, where it once was in harmony. Further,

the issues created and clouded by the rejection

of Gerber v. Spencer's rationale, both in the

Ninth Circuit and other circuits, the

misapplication of the holding of the Fourth

Circuit in Southern Cross, and the rejection of

the Eleventh Circuit's interpretation of Chung

Yong Il, cries out to this Honorable Court to

grant a writ of certiorari for the purposes of

imposing uniformity among the circuits.

RESPECTFULLY SUBMITTED:

LAW OFFICES OF RICHARD J. DODSON

A PROFESSIONAL CORPORATION

628 NORTH BOULEVARD

BATONAROUGE, LA 70802

(504) /344-0633

BY: ( \ () | ta

ATHNASSIOS WN. YIANNAPOULIS

counsel

? 4 F

n iL 6+ 4 ro A Spe t, QJ

Tulane/University Law School

6801 Freret St.

New Orleans, La 70118

(504) 865-5984

APPENDICES

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 90-35618

D.C. NO. CV90-5038-JET

NELSON R. RABY, ET AL.

Plaintiffs-Appellees

VERSUS

M/V PINE FOREST, ET AL.

Defendants-Appellants

Filed: January 17, 1991

Before: Wallace, Thompson and

Fernandez, Circuit Judges

The panel has unanimously voted to deny

appellees' petition for rehearing and to reject

the suggestion for rehearing en banc.

circulated to the active members of the court,

and no judge requested a vote for en banc

consideration.

The petition for rehearing and suggestion for

rehearing en banc is accordingly denied.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 90-35618

D.C. NO. CV90-5038-JET

NELSON R. RABY, ET AL.

Plaintiffs-Appellees

VERSUS

M/V PINE FOREST, ET AL.

Defendants-Appellants

Appeal from the United States District Court

for the Western District of Washington

Jack E. Tanner, District Judge, Presiding

Submitted August 31, 1990

Motions Panel

Filed: October 29, 1990

Before: J. Clifford Wallace, David R. Thompson,

and Ferdinand F. Fernandez, Circuit Judges.

Opinion by Judge Fernandez

SUMMARY

Appeals

Reversing a judgment of the district court

setting the amount of bond required to be posted

pending appeal, the court of appeals held that

the district court abused its discretion in not

allowing for the payment of back wages into

court in determining the amount of bond to be

posted.

The district court entered judgment in favor

of Nelson R. Raby after a bench trial. The

court fixed damages in the sum of $32,657,006.

Since M/V Pine Forest sought to appeal and

wished to stay execution, the district court

then set the supersedeas bond at $59,000,000.

Of that amount, $19,613,565 represented penalty

wages that would accrue at the rate of $26,152

per day while the case was on appeal. Interest

on the accruing position was also included.

Appellants petitioned for a reduction of the

bond.

[1] The court concluded that the district

court had abused its discretion. The district

court erred when it failed to allow for the

payment of the back wages into court, an event

that would stop the running of penalties. That

option ought to be available to appellants. [2]

If all of the back wages owed to a particular

plaintiff have been tenderéd, then the penalty

wages will have ceased to accrue as to that

plaintiff's claim. However, the court

emphasized that penalty wages found to have

accrued up to the date of tender of back wages

did not need to be tendered to preclude the

accrual of further penalties. [3] Although under

some circumstances, an appeal from a wage award

may itself stop the accrual of penalties if the

appeal is taken on strong and reasonable

grounds, given the posture of the case and the

complexity of the issues, the court was unable

to decide the merits of the wage claims at this

early stage of the proceedings, and was

unwilling to speculate on the outcome of the

appeal. (4) Thus, the court reversed the

district court order fixing the amount of the

supersedeas bond insofar as it was based upon

the projected accrual of penalty wages. The

case was remanded for the limited purpose of

resetting the bond. In so doing, the district

court was to determine whether the full amount

of back wages, but not including penalty wages

or interest, has been tendered to the

plaintiffs, or to any of them.

COUNSEL

Paul N. Wonacott and Kathleen A. McKeon, Wood,

Tatum, Mosser, Brooke & Landis, Portland,

Oregon, for the defendants-appellants.

Richard J. Dodson, Baton Rouge, Louisiana, for

the plaintiffs-appellees.

OPINION

FERNANDEZ, Circuit Judge:

After a bench trial, the district court found

in favor of the plaintiffs and fixed damages in

the sum of $32,657,006. Since defendants sought

to appeal and wished to stay execution, the

district court then set the supersedeas bond at

$59,000,000. Of that, $19,613,565 represented

penalty wages which would accrue at the rate of

$26,152 per day while the case was on appeal.

46 U.S.C. § 10313(g). Interest on the accruing

portion was also included. Defendants have

asked that we reduce the amounts of the bond.

We review the decision of the district court

setting the amount of the bond for abuse of

discretion. Rachel v. Banana Republic, Inc.,

831 F.2d 1503, 1505 n.1 (9th Cir. 1987).

{1} Here we find an abuse of discretion

because the district court erred when it failed

to allow for the payment of the back wages into

court, an event that would stop the running of

penalties. Griffin v. Oceanic Contractors,

Inc., 458 U.S. 564, 574 n.9, 102 S.Ct. 3245,

3252 n.9, 73 L.Ed.2d 973 (1982); Swain v.

Isthmian Lines, Inc., 360 F.2d 81, 87-88 n.26

(3rd Cir. 1966); Southern Cross Steamship Co. v.

Firipis, 285 F.2d 651 659-60 (4th Cir. 1960),

cert. denied, 365 U.S. 869, 81 S.Ct. 903, 5

L.Ed.2d 859 (1961). That option ought to be

available to defendants.

{2} Our review of the district court's

decision in this case suggests the possibility

that the defendants have already tendered all or

part of the back wages, but the decision is far

from clear in that respect. If all of the back

wages owed to a particular plaintiff have been

tendered, the penalty wages will have ceased to

accrue as to that plaintiff's claim. We

emphasize that penalty wages found to have

accrued up to the date of tender of back wages

need not themselves be tendered in order to

preclude the accrual of further penalties.

[3] We are aware that, under some

circumstances, an appeal from a wage award may

itself stop the accrual of penalties if the

appeal is taken on strong and reasonable

grounds. Pacific Mail S.S. Co. v. Schmidt, 241

U.S. 245, 250-251, 36 S.Ct. 581, 582-83, 60

L.Ed. 982 (1916). See also Southern Cross

Steamship Co. v. Firipis, 285 F.2d at 659.

However, in those cases the courts were able to

comment upon the strength of the appeal after

having the benefit of full briefing on the

merits, and did so at the time of deciding the

cases on the merits. The courts were not

attempting to divine the strengths of the appeal

before them in advance for the purpose of

setting a supersedeas bond. Given the posture

of this case and the complexity of the issues,

we are unable to decide the merits of the wage

claims at this early stage of the proceedings,

and we are unwilling to speculate on the outcome

of the appeal.

[4] Based upon the above, we reverse the

district court's order fixing the amount of the

supersedeas bond insofar as it is based upon the

projected accrual of penalty wages, and we

remand to that court for the limited purpose of

re-setting the bond. In so doing, the district

court shall determine whether the full amount of

back wages (not including penalty wages or

interest) has been tendered to the plaintiffs,

or to any of them. If so, penalty wages shall

be deemed to have ceased to accrue for the

affected plaintiffs as of the date of the

tender. If not, the penalties may be deemed to

continue accruing until the back wages - are

tendered. As we have already stated, tender

includes payment into court." The bond

required of the defendants shall be reduced

accordingly.

Wwe hasten to add that nothing in

this opinion is intended to suggest that

all or any portion of the penalty wages,

or back wages, should have been assesséd

against the defendants.

The stay of execution previously ordered by

us shall remain in full force and effect without

the further posting of bond until such time as

the district court has entered its order setting

the bond in a manner not inconsistent with this

opinion.

REVERSED as to the bond, and REMANDED for the

limited purpose of setting a new bond.

ENTERED ON

SEP 20 1990

BY DEPUTY NY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

AT TACOMA

NELSON R. RABY, et al., )

Plaintiff, ) No. C90-5038T

-Vvs- )

M/V PINE FOREST, IN REM, ) ORDER

DELICA SHIPPING, S.A., and

INUI STEAMSHIP, CO., LTD. )

Defendant. )

On August 6, 1990, this Court entered

Findings of Fact, Conclusions of Law and

Judgment in the above-entitled cause.

In accordance with FRCP 58, this Court now

orders the entry of a separate judgment. The

clerk of the court is directed to enter judgment

in this case.

The clerk of the court is instructed to send

uncertified copies of this Order to all counsel

of record.

DATED this 19th day of September 1990.

s/Jack E. Tanner

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

NELSON R.

-V-

M/V PINE

IT IS

FINDINGS

AT TACOMA

RABY, ET AL.

JUDGMENT IN A

CIVIL CASE

FOREST, ET AL. CASE NO. C90-5038T

Jury Verdict. This action came before

the Court for a trial by jury. The

issues have been tried and the jury

has rendered its verdict.

Decision by Court. This action came to

trial before the Court. The issues

have been tried and a decision has

been rendered.

ORDERED AND ADJUDGED

JUDGMENT IS ENTERED CONSISTENT WITH

OF FACT AND CONCLUSIONS OF LAW ENTERED

ON Aug. 6, 1990.

(ATTACHED)

ENTERED ON

SEP 20 1990

BY DEPUTY__NY

ENTERED ON

AUG 06 1990

BY DEPUTY NY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

AT TACOMA

NELSON R. RABY, et al., )

Plaintiff, ) No. C90-5038T

-vVs- )

FINDINGS OF FACT

M/V PINE FOREST, IN REM, ) CONCLUSIONS OF

DELICA SHIPPING, S.A., and LAW AND JUDGMENT

INUI STEAMSHIP, CO., LTD. )

Defendant. )

THIS MATTER having come on for trial before

the above-named court sitting without a jury,

and plaintiffs being represented by counsel, and

defendants being represented by counsel, and

plaintiffs having produced evidence in support

of their claims, and defendants having also

produced evidence in this matter, and the court

having heard and considered the argument of

counsel, and the court being fully advised in

this matter, now makes the following:

FINDINGS OF FACT

1. The plaintiffs are thirteen Filipino

seafarers represented by individual counsel, and

eight Filipino seamen represented by AMOSUP,

(Associated Marine Officers and Seamen's Union

of the Philippines). AMOSUP is authorized to

assert its members' statutory wage claims.

AMOSUP makes no claim of its own. All 21 seamen

were employed to serve as seamen on board the

M/V Pine Forest, (defendant in rem) a vessel

owned by defendant Delica Shipping, S.A., a

Panamanian corporation, and flying the flag of

the Republic of Vanuatu. The manager and

operator of the vessel is defendant Inui

Steamship Co., Ltd., a Japanese’ shipping

company.

2. Plaintiffs Raby, Alvardo and Berido were

the only plaintiffs who personally actually

testified at the time of trial. The other ten

plaintiffs did not personally appear in court.

Their failure to personally appear does not

appear to be of their own doing. The court

therefore finds that they were "unavailable" for

trial. In these circumstances the depositions

of the absent plaintiffs are admissible under

Rule 32 of the Federal Rules of Civil Procedure

and Rule 804(B) of the Federal Rules of

Evidence.

3. None of the AMOSUP plaintiffs appeared at

the time of trial. All eight (8) of AMOSUP

plaintiffs were or are still in defendants'

employ. These plaintiffs were, at all times

relevant herein, under defendants' dominion and

control.

4. The Philippine plaintiffs were recruited

in Manila by Western Shipping Agency, a

Philippine corporation and manning agent for

defendants, Delica and Inui. The plaintiffs

were being recruited for the first voyage of the

M/V Pine Forest.

5. Each plaintiff signed an _ individual

employment contract agreeing to serve on board

the M/V Pine Forest. The contracts were signed

in blank by plaintiffs at the Western Shipping

office in Manila. There were no _ figures

inserted therein for each plaintiffs' wages and,

instead, the plaintiffs were told generally what

the wage rates would be.

6. Each plaintiff joined the M/V Pine Forest

in Japan on March 27, 1989, with the exception

of plaintiffs Raby and Galua, who joined the

vessel on July 22, 1989 and January 8, 1990

respectively. At that time, each plaintiff

Signed shipping articles on board the vessel

that were in the substance and form prescribed

by the Republic of Vanuatu. The shipping

articles incorporated the Worldwide

International Transport-Worker's Federation

Colilective Agreement and contained a

Significantly higher pay scale than the oral

representations made to plaintiffs by Western

Shipping Agency in Manila. The shipping

articles set forth the base monthly wage next to

each seafarers name and signature.

7. On September 14, 1989, unknown to

plaintiffs, the shipowner through its agent,

Western Shipping Co., Ltd. in Manila, entered

into a joint JSU/AMOSUP Collective Bargaining

Agreement. Defendants recognized AMOSUP as the

exclusive collective bargaining representative

of all the Filipino seamen aboard the M/V Pine

Forest. The AMOSUP Collective Bargaining

Agreement contained significantly lower wages

than those contained in the shipping articles

and ITF Collective Bargaining Agreement executed

by the plaintiffs when they boarded the M/V Pine

Forest.

8. The defendants executed the JSU/AMOSUP

agreement for the sole purpose of obtaining an

ITF blue certificate and to enroll the M/V Pine

Forest with the ITF. At all times relevant

hereto, defendants never obtained the "blue

certificate." Thereafter, the Pine Forest

traded exclusively between Japan and _ the

Northwest coast of the United States.

9. From the date the plaintiffs joined the

M/V Pine Forest until the vessel was arrested in

Tacoma, Washington, on January 31, 1990, the

vessel called on United States ports a total of

eight times, arriving on the following dates in

1989: April 9, May 17, June 22nd, August lst,

September 17, October 26th, December sth, and

January 24, 1990. All of these voyages were

between the United States and Japan.

10. The M/V Pine Forest carried logs and

wood products from the Pacific Northwest to

Japan. Upon returning to United States waters,

it would discharge ballast and take on cargo.

This court finds that ballast discharged is

"cargo" as that term is used in 46 U.S.C.

Section 10313 (f). One hundred percent of the

income of the M/V Pine Forest since its

launching was earred from these voyages carrying

wood products from the United States to Japan

and back.

ai. The plaintiffs were paid on a monthly

basis. Each month the plaintiffs executed a pay

voucher or "wage receipt" wherein each plaintiff

certified he received the wages and benefits

called for in the shipping articles and the ITF

Collective Bargaining Agreement incorporated

therein. Plaintiff never received the wages

specified in the Shipping Articles.

a2. The shipowner also required the

plaintiffs to sign a separate receipt for wages

actually paid by the master and received by each

plaintiff. This practice is referred to by

defendants as the keeping of "double books." At

least one instance of double-bookkeeping

occurred in the United States while the vessel

was in Longview, Washington.

: i3. Defendants admit that they never

inoowdind to comply with the shipping articles

and ITF wage scale. The conduct of defendants

in the practice of double-bookkeeping and its

refusal to pay plaintiffs their rightful wages

was fraudulent, intentional, and in bad faith.

The seamen were in a very vulnerable position

and were easily intimidated.

14. Plaintiffs signed receipts for the

wages specified in the shipping articles while

in United States waters only once, but

defendants knew that all of the monthly wage

receipts stipulating the higher wages were on

board the M/V Pine Forest each time plaintiffs

wages were wrongfully withheld at the end of

eight separate voyages to United States waters.

15. In these circumstances, plaintiffs’

execution of the shipping articles and their

signing the wage receipts for the wages set

forth in the shipping articles constituted a

legally sufficient demand for payment of wages.

16. Plaintiffs' demand for wages and the

defendants' illegal withholding of wages

occurred while both plaintiffs and the M/V Pine

Forest were in U.S. Harbors or waters at the end

of eight separate voyages from Japan to the

United States.

17. The defendants' fraudulent actions

requiring plaintiffs to sign two sets of

conflicting wage receipts was a repudiation of

their contractual obligation to pay plaintiffs

the wages specified in the shipping articles,

and discharged, by operation of law, plaintiffs

duty to make formal demand for wages.

18. Application to 46 U.S.C. Section

10313(e) was triggered when plaintiffs' demand

for payment of half wages earned and unpaid at

each port at which the vessel discharged ballast

was refused. Application of 46 U.S.C. Section

10313(f) was triggered when, at the end of a

voyage, plaintiffs were not paid the balance of

wages owing.

19. On January 31, 1989, the M/V Pine

Forest was arrested in Tacoma, Washington. All

plaintiffs except Silverio and Cabiltan were

aboard the vessel. Plaintiffs were claiming

back due wages in accordance with the ITF

shipping articles they had executed and which

were their contract of employment.

20. On February 13, 1990, the total sum of

$267,585.65 was tendered by defendants to the

original thirteen plaintiffs for wages claimed

through January 24, 1990, but the tende’ did not

include penalty wages. The amount tendered did

not include $15,019.20 in wages earned by the

seamen between January 24th and February 8th,

the date of final discharge which amount was

claimed in plaintiffs' amended complaints for

back wages. Payments were made without

adiission of liability and with reservations of

right to collect same if court found in favor of

defendants. Penalty wages are included in the

definition of wages. Defendants have failed to

show sufficient cause for withholding payment of

penalty wages once back due wages were paid in

February of 1990. -

i. At the time the thirteen original

plaintiffs signed off the M/V Pine Forest in

Tacoma, Washington, defendants directed the

captain to make a notation in each plaintiffs'

Seamen's Book in the column entitled "Reason for

Discharge:" ‘Requested repatriation upon filing

wage claim to arrest vessel."

22% These notations in the plaintiffs’

Seamen's Books rendered them unemployable in the

Philippines as merchant seamen and they have

been effectively "blacklisted" from obtaining

future employment on ocean-going vessels.

23. It was the intent of the defendants,

when the notations were made, to punish the

plaintiffs for having made a claim for their

wages by entering the above-notations and making

them unemployable as merchant seamen.

24. After the repatriation of the thirteen

original plaintiffs to the Republic of the

Philippines, none of them were able to find

employment as seamen because of the notations

made in each plaintiffs' Seamen's Books. At

least four of the plaintiffs were personally

refused employment.

2s. The plaintiffs are not able to obtain

new Seamen's Books because of the applicable

regulations of the Philippine Coast Guard and

will not be able to do so in the future.

26. Any overtime worked by plaintiffs never

appeared in the ship's log.

a7. Defendants ordered the captain of the

M/V Pine Forest to alter the ship's shipping

articles. The captain then ordered the chief

engineer to actually alter the articles.

28. All of the other defendants' ships have

been and are now operated in the same manner as

the M/V Pine Forest as to the payment of

seamen's wages and double bookkeeping.

29. Before the M/V Pine Forest left Tacoma,

after the arrest, six of the AMOSUP plaintiffs

executed documents entitled "Voluntary

Dismissals" prepared by defense counsel with

plaintiffs' signatures procured by the master of

the vessel. The court finds that these

documents were executed by plaintiffs under

conditions of intimidation and coercion, and,

therefore, they have no legal effect.

30. The court finds that each trip of the

M/V Pine Forest from Japan to the United States

was a "voyage" as that term is used in 46 U.S.C.

Section 10313.

33. This court finds that the conduct by

the defendants at all times relevant herein was

intentional, deliberate, reckless, callous,

flagrant, malicious, indifferent, and

unconscionable. That such conduct by the

defendants was to intimidate, coerce and punish

the plaintiffs. That such conduct was in

complete disregard of the plaintiffs' rights.

That defendants' conduct at all times relevant

herein, violates the laws and public policy of

the United States. The plaintiffs herein are

entitled under statute and general maritime law

of the United States to the protection of the

courts.

32. The facts and circumstance in this case

have convinced this court that plaintiffs are

entitled to punitive damages in such an amount

as will punish the defendants to stop their

past, continuing and ongoing tortious conduct in

operation of the M/V Pine Forest and those other

ships that they operate that sail into any port

in the United States. That the awarding of

punitive damages against the defendants will

serve to punish defendants for their conduct and

to deter others from following defendant's

example.

a3. The thirteen (13) Original Plaintiffs

are entitled to back pay including penalty wages

as follows:

13 ORIGINAL

PLAINTIFFS BACK WAGES PENALTIES

(as of 5/21/90)

Camilo Alvarado $ 7,235.88 $ 597,706.96

Nelson Raby 2,894.19 205,187.25

Teofaniz Roz 1,555.95 480,685.44

Apolonio Torreliza 1,621.29 480,685.44

Leo Ajero 1,762.72 463,426.56

Teodoro Rabie 2,894.19 280,613.44

Modesto Berido 875.91 280,613.44

Marcelo Suarez 875.91 280,613.44

Miguelto Cabales 1,240.61 280,613.44

Teodoro Marquez 548.26 210,381.76

Leonardo Bonnit 626.19 210,381.76

Hermenigildo Banogon 938.79 210,381.76

Cervasito P. Laxina 626.19 210,381.76

34. The eight (8) AMOSUP plaintiffs are

entitled to back wages and penalties as follows:

S. Galua $ 2,686.90 $ 26,329.68

Bonifacio Tabada 9,551.57 480,685.44

Can Machete 29,175.90 463,462.56

Francisco Yabo 18,096.49 311,428.80

Guelberto Bete 16,065.54 280,613.44

G. Villaruel 16,065.54 230,613.44

Russell Silrerio . 20,044.20 391,924.43

Mario Cabiltan 30,549.91 564,404.72

SEES

35. The thirteen (13) Original Plaintiffs

are entitled to compensatory damages which

includes loss of future income and mental

distress, as follows:

13 ORIGINAL

PLAINTIFFS: LO88 OF FUTURE EMOTIONAL

INCOME DISTRESS

Camilo Alvarado $ 950,586.00 $ 100,000.00

Nelson Raby 892,534.00 100,000.00

Teofaniz Roz 649,665.00 100,000.00

Apolonio Torreliza 554,737.00 100,000.00

Leo Ajero 676,302.00 100,000.00

Teodoro Rabie 379,260.00 100,000.00

Modesto Berido 390,009.00 100,000.00

Marcelo Suarez 464,441.00 100,000.00

Miguelito Cabales 480,301.00 100,000.00

Teodoro Marquez 360,091.00 100,000.00

Leonardo Bonnit 353,874.00 100,000.00

Hermenigildo Banogon 341,649.00 100,000.00

Guelberto P. Laxina 307,021.00 100,000.00

36. The eight (8) AMOSUP plaintiffS are

entitled to compensatory damages for mental

distress as follows:

AMOSUP PLAINTIFFS: LO88 OF FUTURE EMOTIONAL

INCOME DISTRESS

S. Galua NONE $ 50,000.00

Bonifacio Tabada NONE 50,000.00

Can Machete NONE 50,000.00

Francisco Yabo NONE 50,000.00

Guelberto Bete NONE 50,000.00

G. Villaruel NONE 50,000.00

Russel Silrerio NONE 50,000.00

Mario Cabiltan NONE 50,000.00

i All plaintiffs are entitle to punitive

damages as follows:

13 ORIGINAL PLAINTIFFS: PUNITIVE DAMAGES

Camilo Alvarado $ 1,000,000.00

Nelson Raby 1,000,000.00

Teofaniz Roz 1,000,000.00

Apolonio Torreliza 1,000,000.00

Leo Ajero 1,000,000.00

Teodoro Rabie 1,000,000.00

Modesto Berido 1,000,000.00

Marcelo Suarez 1,000,000.00

Miguelito Cabales 1,000,000.00

Teodoro Marquez 1,000,000.00

Leonardo Bonnit 1,000,000.00

Hermenigildo Banogon 1,000,000.00

Cervasito P. Laxina 1,000,000.00

AMOSUP PLAINTIFFS:

S. Galua $ 500,000.00

Bonifacio Tabada 500,000.00

Can Machete 500,000.00

Francisco Yabo 500,000.00

Guelberto Bete 500,000.00

G. Villaruel 500,000.00

Russel Silrerio 500,000.00

Mario Cabiltan 500,000.00

38. The plaintiffs, as the prevailing party

herein, are entitled to be awarded reasonable

attorneys' fees, and interest.

The court finds the foregoing Findings of

Fact to have been shown by a preponderance of

the evidence in this matter.

From the foregoing Findings of Fact, the

Court now makes the following:

CONCLUSIONS OF LAW

All Findings of Fact more appropriately

termed Conclusions of Law will be incorporated

as such.

1. This court has jurisdiction of this matter

under the United States Constitution Article III

pursuant to federal Admiralty and Maritime

jurisdiction; 28 U.S.C. Section 1333; and

pursuant to 46 U.S.C. Section 10313(i) of the

Shipping Code.

2. That defendant vessel and plaintiffs were

located in Tacoma, Pierce County, Washington at

the time of the filing of the complaint herein.

3. Federal law rather than State of

Washington law controls damage issued when the

cause of action arises under Federal Maritime

Law.

4. All of plaintiffs' claims for back wages,

including penalty wages, compensatory damages

for tort, and punitive damages are properly

before this court. Defendants' intentional,

fraudulent, bad faith conduct is a maritime tort

resulting in a maritime lien for compensatory

and punitive damages.

5. The tolling of the statute of limitations

does not occur until back due wages and

penalties have been paid in full.

6. The seamen are entitled to two days' wages

- for each day payment was withheld from the date

of each wrongful withholding until full wages

and penalties wages are paid. Penalty wages

will continue to accrue at two times each

plaintiff's rate of pay until the actual payment

is received. Those plaintiffs hereinafter

mentioned are awarded as back pay including

penalties the following sums of money:

13 ORIGINAL

PENALTIES

PLAINTIFFS BACK WAGES

Camilo Alvarado $ 7,235.88

Nelson Raby 2,894.19

Teofaniz Roz 1,353.95

Apolonio Torreliza 1,621.29

Leo Ajero 1,762.72

Teodoro Rabie 2,894.19

Modesto Berido 875.91

Marcelo Suarez 875.91

Miguelto Cabales 1,240.61

Teodoro Marquez 548.26

Leonardo Bonnit 626.19

Hermenigildo Banogon 938.79

Cervasito P. Laxina 626.19

AMOSUP PLAINTIFFS:

S. Galua 2,686.90

Bonifacio Tabada 9,551.57

Can Machete 29,175.90

Francisco Yabo 18,096.49

Guelberto Beta 16,065.54

597,706.96

205,187.25

480,685.44

463,426.56

280,613.44

210,381.76

26,329.68

480,685.44

463,462.56

311,428.80

280,613.44

G. Villaruel 16,065.54 280,613.44

Russell Silrerio 20,044.20 391,924.43

Mario Cabiltan 30,549.91 564,404.72

7. Those plaintiffs hereinafter mentioned are

awarded as compensatory damages for the

outrageous, malicious and intentional conduct of

the defendants, especially, but not limited to,

the entry of the notations in the thirteen

Seamen's Books. The making of the notations

made the thirteen Seamen unemployable. That

such conduct of the defendants was for

retaliation and punishment of the plaintiffs for

requesting what they were lawfully entitled to,

their wages. That defendants conduct at all

times relevant herein, caused plaintiffs duress,

emotional distress, and prevented them from

being employable as seamen.

.13_ ORIGINAL

PLAINTIFFS: LO88 OF FUTURE EMOTIONAL _

INCOME DISTRESS

Camilo Alvarado $ 950,586.00 $ 100,000.00

Nelson Raby 892,534.00 100,000.00

Teofaniz -Roz 649,665.00 100,000.00

Apolonio Torreliza 554,737.00 100,000.00

Leo Ajero 676,302.00 100,000.00

Teodoro Rabie 379,260.00 100,000.00

Modesto Berido 390,009.00 100,000.00

Marcelo Suarez 464,441.00 100,000.00

Miguelito Cabales 480,301.00 100,000.00

Teodoro Marquez 360,091.00 100,000.00

Leonardo Bonnit 353,874.00 100,000.00

Hermenigildo Banogon 341,649.00 100,000.00

Guelberto P. Laxina 307,021.00 100,000.00

(@) : LO88 OF FUTURE EMOTIONAL _

INCOME DISTRESS

S. Galua NONE $ 50,000.00

Bonifacio Tabada NONE 50,000.00

Can Machete NONE 50,000.00

Francisco Yabo NONE 50,000.00

Guelberto Bete NONE 50,000.00

G. Villaruel NONE 50,000.00

Russel Silrerio NONE 50,000.00

Mario Cabiltan NONE 50,000.00

8. That plaintiffs hereinafter mentioned are

awarded punitive damages under general maritime

law because of the callous, deliberate,

unconscionable, reckless, indifferent,

intentional, flagrant, fraudulent, unlawful and

malicious conduct of defendants' agents at all

times relevant herein. The evidence is clear

and convincing and beyond a preponderance of the

evidence that defendants' agents were at all

times acting within the scope of their

employment and were acting for and at the

direction of the defendants.

13 ORIGINAL PLAINTIFFS: PUNITIVE DAMAGES

Camilo Alvarado $ 1,000,000.00

Nelson Raby 1,000,000.00

Teofaniz Roz 1,000,000.00

Apolonio Torreliza 1,000,000.00

Leo Ajero 1,000,000.00

Tecdoro Rabie 1,000,000.00

Modesto Berido 1,000,000.00

Marcelo Suarez 1,000,000.00

Miguelito Cabales 1,000,000.00

Teodoro Marquez 1,000,000.00

Leonardo Bonnit 1,000,000.00

Hermenigildo Banogon 1,000,000.00

Cervasito P. Laxina 1,000,000.00

AMOSUP PLAINTIFFS:

S. Galua $ 500,000.00

Bonifacio Tabada 500,000.00

Can Machete | 500,000.00

Francisco Yabo 500,000.00

Guelberto Bete 500,000.00

G. Villaruel 500,000.00

Russel Silrerio 500,000.00

Mario Cabiltan 500,000.00

9. Defendants are entitled to an offset in

the amount of $267,585.65.

10. Any and all documents’ signed by

plaintiffs herein after the arrest of the vessel

are null and void and have no legal effect.

Plaintiffs have shown good cause pursuant to 46

U.S.C. Section 10313(e), and the Voluntary

Dismissals are hereby set aside.

> In accordance with 46 U.S.C. 10313,

prejudgment interest is awarded to the

plaintiffs on the award of back wages and on

penalty wages, on the date when the wages first

came due, i.e., when the ship entered United

States waters. Interest shall begin to run on

the compensatory and punitive damages as of the

date of entry of judgment herein.

i3. Interest is awarded and shall accrue in

accordance with 28 U.S.C. Section 1961.

Judgment is entered against the defendants, the

M/V Pine Forest in rem and Delica Shipping, S.A.

and Inui Steamship Co., Ltd., jointly and

severally in personam for plaintiffs'

' compensatory and punitive damages, back wages,

penalty wages, and for reasonable attorneys'

fees, interest and costs.

14. Plaintiffs as the prevailing party

herein shall be awarded reasonable attorneys'

fees in an amount to be determined at a later

date. Award of attorneys' fees is predicated on

defendants' bad faith and is proper under Vaughn

v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.

2d 88 (1962).

is. The plaintiffs shall recover their

costs and expenses in such sums as_ are

determined by the clerk of the court.

16. Judgment is further entered for

additional penalty wages which shall continue to

accrue for each plaintiff seaman from May 21,

1990, at two (2) times each plaintiff's daily

rate of pay until actual receipt of payment.

The exact amount of these additional penalty

wages shall be computed at the time of payment.

DATED this 6th day of August 1990.

s/Jack E. Tanner

UNITED STATES DISTRICT JUDGE

46 U.8.C. § 10313

"(a) A seaman's entitlement to wages and

provisions begins when the seaman begins work or

when specified in the agreement required by

section 10302 of this title for the seaman to

begin work or be present on board, whichever is

earlier.

(b) Wages are not dependent on the earning of

freight by the vessel. When the loss or wreck

of the vessel ends the service of a seaman

before the end of the period contemplated in the

agreement, the seaman is entitled to wages for

the period of time actually served. The seaman

shall be deemed a destitute seaman under section

11104 of this title. This subsection applies to

a fishing or whaling vessel but not a yacht.

is discharged improperly before the beginning of

the voyage or before one month's wages are

earned, without the seaman's consent and without

the seaman's fault justifying discharge, the

seaman is entitled to receive from the master or

owner, in addition to wages earned, one month's

wages as compensation.

(d) A seaman is not ertitled to wages for a

period during which the seaman--

(1) unlawfully failed to work when

required, after the time fixed by the

agreement for the seaman to begin work; or

(2) lawfully was imprisoned ffor an

offense, unless a court hearing the case

otherwise directs.

(e) After the beginning of the voyage, a

seaman is entitled to receive from the master,

on demand, one-half of the balance of wages

earned and unpaid at each port at which the

vessel loads or delivers cargo during the

voyage. A demand may not be made before the

expiration of 5 days from the beginning of the

voyage, not more than once in 5 days, and not

more than once in the same port on the same

entry. If a master does not comply with this

subsection, the seaman is released from the

agreement and is entitled to payment of all

wages earned. Notwithstanding a release signed

by a seaman under section 10312 of this title,

a court having jurisdiction may set aside, for

good cause shown, the release and take action

that justice requires. This subsection does not

apply to a fishing or whaling vessel or a yacht.

(f) At the end of a voyage, the master shall

pay each seaman the balance of wages due the

seaman within 24 hours after the cargo has been

discharged or within 4 days after the seaman is

discharged, whichever is earlier. When a seaman

is discharged and final payment of wages is

delayed for the period permitted by this

subsection, the seaman is entitled ac the time

of discharge to one-third of the wages due the

seaman.

(g) When payment is not made as provided

under subsection (f) of this section without

sufficient cause, the master or owner shall pay

to the seaman 2 days' wages for each day payment

is delayed.

(h) Subsections (f) and (g) of this section

do not apply to a fishing or whaling vessel or

yacht.

(i) This section applies to a seaman on a

foreign vessel when in a harbor of the United

States. The courts are available to the seaman

for the enforcement of this section."

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above

and foregoing Petition for Writ of Certiorari

has been served upon Paul Wonacott and Kate

McKeon, Wood, Tatum, Mosser, Brooke & Landis,

Suite 1300, 1001 S.W. Fifth Avenue, Portland,

Oregon 97204, and Joe 8tacey, LeGros, Buchanan,

Paul & Whitehead, 2500 Columbia Center, 701

Fifth Avenue, Seattle, Washington 98104-7098, by

United States Mail, postage prepaid.

P |

onthe

March, 1991.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.