Opposition Brief — Collins v. Anndep Steamship Corp.

No. 84-1798

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

FREDERICK L. COLLINS,

Petitioner

Vv.

ANNDEP STEAMSHIP CORPORATION,

Respondent

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Third Circuit

BRIEF FOR ANNDEP STEAMSHIP

CORPORATION IN OPPOSITION

W. Stanley Sneath

Clark, Ladner, Fortenbaugh & Young

1818 Market Street — 32nd Floor

Philadelphia, PA 19103

(215) 241-1860

PACKARD PRESS | LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA, PA. 19123 (215) 236-2000

QUESTIONS PRESENTED

1. Whether the defendant shipowner acted both

properly and reasonably in deducting repatriation ex-

penses from the plaintiff seaman who was arrested while

attempting to smuggle a quantity of marijuana onto his

ship and was jailed by Panamanian authorities, where

the Panamanian authorities required the shipowner to

repatriate the seaman following his release.

2. Whether the shipowner acted both properly and

reasonably in not tendering a seaman’s earned wages

until the seaman contacted the shipowner after his re-

lease from a Panamanian jail and his repatriation to the

United States.

PARTIES

Frederick L. Collins, seaman on the United States

Flag steam tanker WILLIAMSBURGH, Petitioner.

Anndep Steamship Corporation, operator of the S.T.

WILLIAMSBURGH, Respondent.

TABLE OF CONTENTS

Page

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Summary of the Argument...................... 3

Argument

A. Petitioner Forfeited Rights As A Conse-

guence Of His Activities In Panama..... 5

B. Anndep Acted Reasonably With Respect

To Collins Repatriation................. 7

C. Anndep Had No Duty To Seek Out Collins

And Tender His Wages Before Collins Re-

turned To The United States And Re-

qQuattne FROME Wi 35o5 Skee 8

D. Common Sense Supports The Lower

Courts TRC «ck so ic ees eee 9

RAINE on. seiko cks cee hd an en eee 10

TABLE OF AUTHORITIES

Cases: Page

American Foreign Steamship Company v. Matise,

I PN ik ob ek kn ewes vnccnseecs

Chambers v. Moore McCormack Lines, Inc., 182

ee SS)

Denahey v. Isbrandtsen Co., 1948 A.M.C. 1487

(S.D. N.Y. 1948) 1951 A.M.C. 661 (S.D. N.Y.

es ale Die ag wiga wad a ses & vasa

Dick v. United States Lines, Co., 38 F. Supp. 685

ua Gavacsiyecenesacs ssw

Doran v. United States, 1949 A.M.C. 1986 (E.D. Pa.

Escobar v. Ss WASHINGTON TRADER, 640 F.2d

1063 (9th Cir. 1981) (on remand from Supreme

oun, See wo. 1070 (1076) ................

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564

ae a SS 2 cc a eb ea ode + 058

Isbrandtsen Co. v. Johnson, 343 U.S. 779 (1952). .

Pitsillos v. THE SS GEORGE, 176 F. Supp. 351

ae ba ssc shee eke owe de o

Thomas v. SS SANTA MERCEDES, 572 F.2d 1331

EE SSS Rey erat oe Gg

Yeon Shipp yg Corp. v. Thomas Keys, et al, Civil Ac-

items Pee. @4-40G0 (E..D. Pa.) .................

STATUTES:

TED 6 Ur ) a

46 U.S.C.A. §10313 (West Supp. 1983)..........

46 U.S.C.A. §10501 (West Supp. 1983)..........

46 U.S.C.A. §10701 et. seq. (West Supp. 1983)...

46 U.S.C.A. §11501 (West Supp. 1983)..........

~“]

No. 84-1798

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

FREDERICK L. COLLINS,

Petitioner

Vv.

ANNDEP STEAMSHIP CORPORATION,

Respondent

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Third Circuit

BRIEF FOR ANNDEP STEAMSHIP

CORPORATION IN OPPOSITION

OPINIONS BELOW

The Opinion of the United States District Court for

the Eastern District of Pennsylvania is not officially re-

ported. It has been reported at 1984 A.M.C. 2524, and is

found in the Appendix hereto at A-1.

2

The Judgment Order of the Court of Appeals for the

Third Circuit is unreported, and is found at A-1 in the

petition of Collins.

JURISDICTION

Respondent acknowledges and accepts the state-

ment of jurisdiction presented by petitioner, Collins, at

page l.

STATUTES

46 U.S.C. §10313 46 U.S.C. §10701

46 U.S.C. §10501 46 U.S.C. §11501

STATEMENT OF THE CASE

Original federal jurisdiction of this matter arises un-

der 28 U.S.C. §1333(1).

This penalty wage action arises out of the incarcer-

ation by Panamanian authorities of the petitioner, and

the events which followed. The petitioner was a stew-

ard’s utility on the S.T. WILLIAMSBURGH. Petitioner

was returning from shore leave in Puerto Armuelles,

Panama, when he was arrested at the marine terminal

gate with a quantity of marijuana. Petitioner was taken

to a nearby town and incarcerated for approximately four

months. His jailers took all of petitioner's money during

the period of his incarceration.

Petitioner obtained the services of a local attorney,

and on June 14, 1982, was released from custody. The

Panamanian records of the arrest, investigation and trial

of petitioner's case indicate that petitioner was released

after admitting possession of marijuana, but raising the

defense that possession was legal in his home state of

Alaska, and that he did not know that possession was

against the law in Panama.

During petitioner's incarceration, the local steam-

ship agents retained by respondent repeatedly advised

3

respondent that the Panamanian Government would ul-

timately require petitioner to repatriate the plaintiff.

Thus, when petitioner was released from jail, he was

promptly put on an airplane and flown to Los Angeles,

the port from which he joined the WILLIAMSBURGH.

The expenses of repatriation, $648.90, were deducted

from his wages, which were paid on petitioner’s return to

the United States.

The trial judge found, as a matter of fact, that Collins

did not object to the arrangements made on his behalf.

The trial judge also found that respondent acted reason-

ably in repatriating the petitioner and deducting the ex-

penses thereof from his wages. Finally, the trial judge

ruled, during the trial, that respondent acted reasonably

in not forwarding the petitioner's wages to him while he

was jailed.

Petitioner appealed from the adverse findings of the

dist’ ct court. The court of appeals affirmed the district

court without written opinion, and subsequently denied

petitioner’s request for a rehearing en banc.

Petitioners filed a Petition for Certiorari to this Court.

This brief in opposition follows.

SUMMARY OF ARGUMENT

The Petitioner now brings before this Court the very

same arguments which have failed to impress both the

district court and the court of appeals. The distvict court

was unimpressed with the plaintiffs veracity, and the

court of appeals was equally unimpressed with the plain-

tiffs legal arguments. The decisions below were correct

and there is no need for further review by this Court

The district court found, on the facts, that respon-

dent acted reasonably in retaining the petitioner's wages

during his incarceration in Panama, and in having the

petitioner pay for the costs of his repatriation by deduct-

ing these costs from petitioner's wages. .

4

There are two elements to this case. The first con-

cerns the propriety of the respondent’s conduct in not

actively seeking out the petitioner while he was in a Pan-

amanian jail and tendering his wages. The law is clear

that a shipowner need not seek out a seaman in order to

tender him his wages. Petitioner’s suggestion that such

is required has no foundation in the law.

The second element involves the respondent’s use of

the petitioner’s wages to pay for the petitioner's repatri-

ation. Collins failed to join the WILLIAMSBURGH as a

result of his arrest at the terminal gate. Consequently, he

was logged “failed to join” and discharged for cause. A

seaman who is discharged for cause is not entitled to

repatriation at the expense of the shipowner. In this

case, however, the shipowner was advised that the local

authorities required it to repatriate Collins upon his re-

lease from jail. Consequently, although Anndep had the

obligation to make arrangements for and insure that the

petitioner was repatriated from Panama, it did not have

the financial obligation to pay for this repatriation. As

between the shipowner and the petitioner, petitioner had

that obligation. Consequently, the district court found

that the respondent acted reasonably in deducting the

repatriation expenses from petitioner’s wages. In other

words, the shipowner had sufficient cause to withhold

the petitioner’s wages.

ARGUMENT

The Penalty Wage Statute, 46 U.S.C. §10313 (f

through g) (formerly U.S.C.§596) permits a seaman,

whose wages have not been paid, without sufficient

cause for non-payment, to bring suit and collect two days

wages for each day that payment is delayed. See Griffin

vs. Oceanic Contractors, Inc., 458 U.S. 564 (1982). In

order to collect penalty wages the seaman must prove

two elements. The first is that the wages were unlawfully

withheld. The second is that the shipowner did not have

5

sufficient cause to withhold wages where the wvithhoid-

ing was otherwise technically unlawful. In this case, the

district court found as a matter of fact that the shipowner

acted properly and reasonably in not tendering wages

during the period when the petitioner was jailed, and

also in deducting repatriation expenses from Collins’

wages.

A. Petitioner Forfeited Rights As A Consequence Of His

Activities in Panama

Collins was arrested while attempting to return to

the WILLIAMSBURGH with a quantity of marijuana.

His actions constituted an attempt to smuggle contra-

band onto United States flag vessel, in violation of

United States and Panamanian law. His actions had two

immediate consequences. First, he was arrested by

Panamanian authorities and jailed for some months.

Second, he was logged “failed to join” by the

WILLIAMSBURGH.

Under normal circumstances, a vessel has no fur-

ther responsibility to a crew member, such as Collins,

who fails to return following shore leave. If, and when,

the seaman ever again reports to the vessel owner and

requests his back wages, if any, the shipowner is obli-

gated to make payment, less any penalties which might

have been charged as a result of the seaman’s failure to

join. However, a vessel owner has no duty to seek out a

seaman and pay his wages. Thomas vs. SS SANTA

MERCEDES, 572 F.2d 1331 (9th Cir. 1978).

Under United States law a shipowner owes no fur-

ther duty to a seaman who fails to join his vessel in a

forei sn port. Where a seaman has been arrested and

lodged in a jail in a foreign port for a violation of the laws

of that country, on his release he is not entitled as a mat-

ter of right to repatriation at the expense of the ship-

owner. Dick vs. United States Lines Co., 38 F.Supp. 685

(S.D.N.Y. 1941). However, Anndep’s local steamship

6

agents repeatedly instructed Anndep that Panamanian

law required the petitioner to be repatriated upon his re-

lease from jail. As a result, Anndep was forced to expend

funds to repatriate Collins, as a direct result of Collins’

actions in Panama. Simply put, Collins’ attempt to smug-

gle marijuana onto the WILLIAMSBURGH forced Ann-

dep to spend $648.90 to repatriate him. 46 U.S.C.

§11501 (formerly U.S.C. §701) sets forth a series of of-

fenses for which a seaman forfeits all or part of his

wages. Subsection 8 of section 11501 reads:

“For smuggling for which a seaman is convicted

causing loss or damage to the owner or master, the

seaman is liable to the owner or master for the loss

or damage, and any part of the seaman’s wages may

be retained to satisfy the liability...”

The Third Circuit has held that an actual conviction

is unnecessary if there can be no doubt that the seaman

made an attempt at smuggling, and the vessel or her

owners were put to expense as a direct result. Chambers

us. Moore McCormack Lines, Inc., 182 F.2d 747 (3rd Cir.

1950). In Chambers, the seaman involved was not con-

victed of smuggling, but the vessel was put to expense as

a result of the discovery of the seaman’s stash of contra-

band. Although the petitioner suggests that the decision

in this case represents a grave blow to seamen’s rights,

the result and rationale are identical to that found in the

Chambers case. Consequently, there is nothing shocking

or radical about the result, and review by this Court is

unnecessary.

The petitioner would have the shipowner jump

through every statutory hoop, regardless of whether the

hoops were even there in this circumstance. The peti-

tioner chooses to ignore the fact that the district court

made a specific finding of fact that the shipowner’s ac-

tions were reasonable under the circumstances. By find-

7

ing the shipowner’s actions reasonable, the trial judge

made a factual finding that the shipowner acted with

sufficient cause.

B. Anndep Acted Reasonably With Respect to Collins

Repatriation

It is clear in the district court’s opinion that the trial

judge simply did not believe the petitioner’s testimony at

trial. Therefore, despite the assertions made by peti-

tioner, in his Brief, the court found that Collins made no

objection to the actions taken by the shipowner with re-

spect to his repatriation. Thus, the result here is sup-

ported by the cases of Escobar vs. Ss WASHINGTON

TRADER, 640 F.2d 1063 (9th Cir. 1981) (on remand

from Supreme Court, 423 U.S. 1070 (1976)) and Amer-

ican Foreign Steamship Co. vs. Matise, 423 U.S. 150

(1975). In both of these cases, shipowners were faced

with a situation where as between themselves and the

seamen, they were not responsible for repatriation costs,

but considerations of foreign law required the shipowner

to see to it that the seaman was repatriated. In both of

these cases the shipowner purchased airline tickets and

made arrangements for the repatriation of the seamen,

deducting the costs thereof from earned wages. As be-

tween the shipowner and the seaman, the seaman had

the obligation to pay for his own repatriation out of his

own funds, and not out of a repatriation allowance sep-

arate from wages. See Isbrandtsen Co. vs. Johnson, 34°

U.S. 779 (1952). Therefore, it was clearly the responsi-

bility of the seaman to pay for repatriation, and whether

the seaman consents to have this expense paid in kind,

out of his wages, or not, is irrelevant. The seaman re-

ceived the full value of his wages in kind rather than in

currency. He wou.d have no more cash whether he paid

directly or indirectly for his transportation home. As the

Supreme Court stated in Matise:

8

“The obvious concern of section 596 is that the ship-

owner not unlawfully withhold wages, and thereby

unjustly enrich himself while wrongfully denying

the seaman the benefits of his labor.”

423 U.S. 150, 159. Even if Collins did not affirmatively

consent to his repatriation by Anndep, it is clear from the

court’s finding that he did not object, and the failure to

obtain explicit consent, if such failure in fact occurred,

should not be considered such a distinct difference from

Matise and Escabar to warrant a different result.

C. Anndep Had No Duty To Seek Out Collins And Tender

His Wages Before Collins Returned To The United

States And Requested Payment

Anndep was not under any duty to find out what jail

Collins was in and tender his back wages. It was not Ann-

dep’s fault that Collins was jailed. Collins was jailed as a

result of his own misconduct, and neither law nor equity

made Anndep responsible to him while he was in prison.

“To require shipping companies to search out sea-

men to pay accrued wages is an unrealistic burden,

one we refuse to impose. It is more reasonable to

expect seamen to present themselves and their

vouchers ‘for payment.”

Thomas vs. SANTA MERCEDES, 572 F.2d 1331, 1335

(9th Cir. 1979). See Doran vs. United States, 1949

A.M.C. 1986 (E.D. Pa. 1949); Denahey vs. Isbrandtsen

Co., 1948 A.M.C. 1487 (S.D.N.Y. 1948), 1951 A.M.C.

661 (S.D.N.Y. 1951); Pitsillos vs. THE SS GEORGE, 176

F.Supp. 351 (E.D. Va. 1959).

The petitioner suggests that his wages should have

been turned over to the United States Consul in Panama.

While such may be required for deceased seamen (46

U.S.C. §10701 et seq. ), there is no statutory provision for

such with respect to incarcerated seamen. In all likeli-

hood, if Anndep had turned over petitioner’s wages to a

9

consular official in Panama, petitioner would have con-

tended that this action was unlawful, and demanded

penalty wages for this “breach” of the shipowner’s obli-

gation. The result reached is not only logical, but it is

supported by Escobar vs. Ss WASHINGTON TRADER,

supra. In Escobar, the Ninth Circuit held that the duty

to pay wages would not begin to run until the seaman

was discharged from a hospital in which he had landed

as a result of his own misconduct, and had presented

himself to demand his wages from the shipowner.

Escobar, supra, at 1064, N.3. Consequently, the ship-

owner's actions are fully supported by existing law, and

there is no reason for Supreme Court review in this case.

D. Common Sense Supports The Lower Court’s Decision

Petitioner forecasts dire consequences for seamen if

this case is not reversed. A careful examination of the

case, shows that it breaks little, if any, new ground. The

decision of the district court, as affirmed by the court of

appeals, is supported by numerous other decisions, as

well as by common sense. The suggestion that this de-

cision will lead to gross abuses of seamen’s rights is pa-

tently unfounded. !

It is obvious that the Collins decision does not reduce

“sufficient cause” to “any cause.” Nor does it confuse the

concept of sufficient cause with the discharge of a sea-

man for cause. It is plain that the trial judge examined

the situation in its totality, and determined that the ship-

owner acted with sufficient cause in this case.

The obligation to pay a seaman’s wages is a heavy

one, but the petitioner would allow a shipowner abso-

1. The cases to which the petitioner is apparently referring to in

his footnote on page 7 of Petitioner's Petition involve seamen who

were discharged after an unprovoked violent armed assault on ship’s

officers. The shipowner paid the seamen their full back wages and

repatriation expenses, and has filed suit to recover the costs occa-

sioned by the seamens’ misconduct. See Yeon Shipping Co. v.

Thomas Keys, et al. Civil Action No. 84-4866 E.D. Pa.

10

lutely no flexibility to deal with the demands of a given

situation. It is clear that the respondent acted properly

under the circumstances and the result below was a

proper and just outcome.

Petitioner points out at pages 4 and 5 of his brief that

sailors are a protected class whose role is indispensable

to the national defense. Sailors are the lifeline of our in-

ternational communications. However, Petitioner’s role

in this sad episode was obviously not indispensable.

While the law rightly treats sailors as wards of the ad-

miralty because of past abuses they have suffered, the

law should not provide a license to sailors to act as ir-

responsably as Petitioner has acted. The Penalty Wage

Statute has, as its salutary purpose, the requirement that

shipowners act reasonably in promptly paying seamen

and not benefit by withholding wages. Such purpose

would not at all be enhanced here by overruling the trial

judge’s finding that the shipowner acted reasonably. A

common sense view of the facts demonstrates the wis-

dom of the court’s finding. The Penalty Wage Statute

should not be distorted from accomplishing its main pur-

pose by being applied to situations where vessel owners

act reasonably to help seamen, and are not unjustly

enriched.

Conclusion

The district court’s legal and factual findings are cor-

rect. The court of appeal’s affirmance is proper. There is

no need for Supreme Court review of this case.

11

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FREDERICK L. COLLINS : CIVIL ACTION

v.

ANNDEP STEAMSHIP CORPORATION ~ : NO. 82-5284

MEMORANDUM AND ORDER

FULLAM, J. JUNE 29, 1984

Seamen’s action for penalty wages. Plaintiff served

as a member of the crew of defendant’s vessel from De-

cember 25, 1981 until discharged on March 1, 1982. The

discharge was occasioned by the fact that, while on shore

leave in Panama, plaintiff was arrested by Panamanian

authorities on drug charges, and thus failed to rejoin the

vessel before its departure.

As of March 1, 1982, there was due and owing to

plaintiff a total of $876 in wages. Plaintiff remained in jail

in Panama until July 14, 1982. Upon his release, defen-

dant’s Panamanian . gents arranged for overnight hotel

accommodations and provided plaintiff with a one-way

airplane ticket for his return to the West Coast of the

United States; which occurred on July 15, 1982.

Upon being informed of plaintiff's release from cus-

tody, the defendant’s New York office sent a check for

the balance of plaintiff's wages to the permanent address

listed on company records (the residence of plaintiff's

mother, in Florida). The payment was made on or about

July 23, 1982, and was received by plaintiff in due course

shortly thereafter. The issue in this case is whether it

was permissible for the defendant to deduct from the

wages due the cost of the airline ticket for plaintiff's re-

patriation, viz., the sum of $648.90.

Plaintiff testified that, upon his release from police

custody, he requested payment in full of his back wages,

with a view toward joining some other vessel in Panama,

but was told by defendant’s Panamanian agent that he

12

would be paid when he returned to the United States,

that a company representative would meet his plane in

Los Angeles to settle the matter, and that his only option

was to accept the arrangement for immediate return to

the United States by air. At no time, according to the

plaintiff, did he agree to bear the cost of the return trip,

or authorize its deduction from his back wages

Even assuming that plaintiff's recollection of these

events is entirely correct, | am satisfied that the company

acted properly in repatriating the plaintiff and in charg-

ing him with the cost of the return trip. As between

plaintiff and the defendant, the defendant had no obli-

gation to bear the cost of plaintiff's repatriation. More-

over, the evidence makes it quite clear that the

defendant had been advised by its Panamanian agents

that, under Panamanian law, the defendant was re-

quired to see to it that plaintiff left the country promptly.

In my view, the defendant acted reasonably in arranging

for plaintiff's immediate return to the United States, and

made prompt payment to the plaintiff of all sums to

which he was legally entitled.

Moreover, I am not persuaded that plaintiff actually

did object, at the time, to the arrangements made by the

defendant. On this record, it is undisputed that plaintiff

purchased a quantity of marijuana and was arrested by

Panamanian police while in possession of the contra-

band. He was confined to Panamanian jails for four

months, during which, according to plaintiff, he was

subjected to rather harsh treatment. The record of his

criminal trial makes clear that plaintiffs ultimate release

was obtained only because his Panamanian attorney was

able to convince the court that possession of marijuana

was perfectly legal in plaintiff's state of residence, and

that plaintiff had no idea he was violating Panamanian

law. I think it highly unlikely that plaintiff really would

have preferred to remain in Panama seeking employ-

ment on another vessel, rather than immediately return

‘to freedom in the United States.

-

13

For all of these reasons, judgment will be entered in

favor of the defendant.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FREDERICK L. COLLINS >: CIVIL ACTION

V.

ANNDEP STEAMSHIP CORPORATION — : NO. 82-5284

ORDER

AND NOW, this 29th day of June, 1984, it is OR-

DERED that judgment is entered in favor of the

defendant.