Incres Steamship Co. v. International Maritime Workers Union

Botein, P. J.

(dissenting). Plaintiff, a corporation organized under the laws of Liberia, operates two cruise vessels under the Liberian flag. All of plaintiff’s officers and shareholders are foreign nationals; and the ships are manned by alien crews hired at Genoa, Italy. No Liberian citizen, however, plays any role in either the management of plaintiff or in the operation of its ships.

All of plaintiff’s cruises originate in New York, and its passengers are principally Americans. Plaintiff occupies common office space in the City of New York with its agency, a New York corporation. Plaintiff’s president is also an officer and director of the agency, which sometimes alone, sometimes jointly with plaintiff, provisions the ships, books passengers, schedules departures and arrivals- and attends to ships’ repairs — all out of the New York office.

*186Defendant International Maritime Workers Union was formed recently by two large maritime unions affiliated with AFL-CIO. An avowed major purpose, recited in the preamble to the union’s constitution, is to bring strong and responsible union representation to the crews of ships flying so-called 66 flags of convenience ”. Defendant union contends that plaintiff’s ships fall into this category, and that their victimized crews are denied human dignity, decent wages and working conditions. When plaintiff’s vessels ply regularly in and out of New York, the union claims their substandard labor conditions also pose a real menace to the preservation of the high, hard-won standards prevailing on American flag vessels under contract with American maritime unions.

Representatives of the union made contact with crew members aboard both of plaintiff’s vessels, for the purpose of organizing them, to the end that they would be represented by the union. They also picketed both ships upon their arrival in New York Harbor and were successful in preventing their scheduled departures. The picketing at all times was orderly and peaceful — in fact, the pickets never exceeded three in number.

Plaintiff served a summons and complaint seeking a permanent injunction and damages of defendant union and its executive director. Following trial an order and judgment were entered, denying defendants’ motion to dismiss the complaint on the ground the court lacked jurisdiction over the subject matter, permanently enjoining defendants from interfering in any way with the operation and management of the two ships and from picketing them for any purpose and severing and reserving plaintiff’s claim for damages for later trial.

In holding that jurisdiction resided in the State courts, the Justice at Special Term relied solidly on the 1957 decision of the Supreme Court in Benz v. Compania Naviera Hidalgo, S. A. (353 U. S. 138), which he said was “ squarely on all fours with the instant case ’ ’. In the Benz case, as here, the vessel, a foreign tramp steamer, flew the Liberian flag, had foreign owners, and the crew complement was composed of foreign nationals. Unlike the fact situation presented here, however, the owners of the steamer in the Benz ease had no office or agents in the United States, and the ship did not receive the major part of its business from American nationals nor visit an American port regularly; and after a single, initial, fairly haphazard contact with an American port the steamer left United States territorial waters and thereafter had no charter commitment to return. Again, unlike the instant case, in which a union has sought directly to organize foreign seamen on ■=> foreign ship to preserve, among *187other things, American wage and working standards, in Benz the unions were interested primarily in the internal economy of the ship and picketed out of sympathy for a strike of foreign seamen.

As the opinion itself indicates, the Benz case had rather special facts (p. 142): “It should be noted at the outset that the dispute from which these actions sprang arose on a foreign vessel. It was between a foreign employer and a foreign crew operating under an agreement made abroad under the laws of another nation. The only American connection was that the controversy erupted while the ship was transiently in a United States port and American labor unions participated in its picketing.”

The compass of the Benz holding was recently outlined succinctly in Marine Cooks v. Panama S. S. Co. (362 U. S. 365). In the latter case the Supreme Court said (p. 369): “The question in the Benz case was whether the Labor Management Relations Act of 1947 governed the internal labor relations of a foreign ship and its foreign workers under contracts made abroad while that ship happened temporarily to be in American waters. The Bens case decided that the Labor Management Relations Act had no such scope or coverage and that it accordingly did not preempt the labor relations field so as to bar an action for damages for unlawful picketing under Oregon law.”

The court in this later case was again confronted with the picketing of a Liberian ship, manned by an alien crew. In this situation, however, there was no labor dispute between the ship’s employees and the ship’s management. The picketing, carried on by an American union, was to protest the loss of AFL-CIO seamen’s livelihood to foreign flag ships with substandard wages and conditions. In these circumstances the Supreme Court rejected the District Court’s assumption of jurisdiction to issue an injunction on that court’s stated ground that the picketing was an “ unlawful interference with foreign commerce” and interfered ‘4 in the internal economy of a vessel registered under the flag of a friendly foreign power ”. This position had been also adopted by the Court of Appeals, in reliance almost entirely on the holding in the Benz case (265 F. 2d 780, 786 [C. C. A. 9th, 1959]).

While the Supreme Court in Marine Cooks expressly bottomed its dismissal of the petition for an injunction on the limitations upon the courts’ jurisdiction imposed by the Norris-La Guardia Act (U. S. Code, tit. 29, § 101 et seq.), it gave expression to some intriguing dictum. In a footnote (p. 371) the court pointed to the special facts present in the Benz situation (362 U. S. 365, *188371-372- n. 12): “ Unlike the situation in the Bens case, in which American unions to which the foreign seamen did not belong picketed the foreign ship in sympathy with the strike of the foreign seamen aboard, the union members here were not interested in the internal economy of the ship, but rather were interested in preserving job opportunities for themselves in this country. They were picketing on their own behalf, not on behalf of the foreign employees as in Bens. Though the employer here was foreign, the dispute was domestic. For a thoughtful discussion of the impact of foreign employment upon American labor standards, see Afran Transport Co. v. National Maritime Union, 169 F. Supp. 416, 1959 Am. Mar. Cas. 326 (holding that the Norris-La Guardia Act withdrew from Federal District Courts jurisdiction to issue labor injunctions in a labor dispute strikingly like the one here involved). But see Fianza Cia. Nav. S. A. v. Benz, 1959 Am. Mar. Cas. 1758, 37 CCH Lab. Cas. ¶ 65,495.”

Therefore, in the Bens case- not only were there no substantial American contacts with the ship operated under the foreign flag of convenience, such as are present in this case; but the picketing by the unions was evidently viewed as prompted essentially out of sympathy for the objectives of foreign seamen on a foreign boat, and not to better the lot of American sailors. The three domestic unions, by injecting themselves into this wholly foreign dispute, placed themselves in the traditionally dangerous position of strangers intermeddling in a family fight.

It has been argued forcefully that the considerations of ‘ ‘ international relations ”, “possibilities of international discord”, etc., which so troubled the court in the Bens case when contemplating the applicability of the Labor Management Relations Act to foreign ships with foreign crews, are relevant with regard to the rights guaranteed to employees under section 7 of the act but are not relevant with regard to the prohibitions of section 8 of the act. (Comment “ The Effect of United States Labor Legislation on the Flag-of-Convemence Fleet: Regulation of Shipboard Labor Relations and Remedies Against Shoreside Picketing.” 69 Yale L. J. 498,516,523.)

The National Labor Relations Board had in a somewhat similar situation refused to apply the protections of section 7 of the act while enforcing the prohibitions of section 8. (Cf. Matter of Sailors’ Union of Pacific [Moore Dry Dock Co.], 92 N. L. R. B. 547 [1950], with Compania Maritima Sansoc Limitada, Case No. 20 RC-809 [5/1/50], CCH NLRB Decisions 1950-1951, ¶ 10,081.) Only the dissenter in Bens accepted this argu*189ment (353 U. S. 138, 147-150). (Cf. Teamsters Union v. New York, New Haven & Hartford R. R. Co., 350 U. S. 155 [1956].)

Even at common law it was recognized that the deck of a visiting ship afforded no sanctuary from certain rights of local government; and that all things done on board which affected only the vessel or those belonging to her, and did not involve the peace or dignity of the country, or the tranquility of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged ’ ’ (Wildenhus’s Case, 120 U. S. 1,12 [1887]) (emphasis supplied).

The instant case would appear to rest somewhere between the situations posed in Bens, on the one hand, and Marine Cooks, on the other. Defendants here were picketing not only on behalf of the foreign employees of a foreign ship, as in Bens, but on their own behalf, as in Marine Cooks. And whatever might be plaintiff’s status under international law, by all practical labor relations reckoning its operations are as singularly domestic as though its ships sailed the Great Lakes.

If the Bens rule is applicable to all ships flying flags of convenience, it apparently has not been followed by the National Labor Relations Board as devoutly as it should have been by the tribunal endowed with “ exclusive primary competence ” (San Diego Unions v. Garmon, 359 U. S. 236, 245) in these matters. In Peninsular & Occidental S.S. Co. (120 N.L.R.B. 1097 [1958]) the board found jurisdiction and distinguished the Bens case where “ the employer, as we have found above, is a domestic corporation, not a foreign national and the crews include a number of American citizens and resident aliens. Moreover, the crews do not sign shipping articles containing conditions of employment prescribed by a foreign government, but rather sign old type American articles. As for the ships, their home port is, for all practical purposes, at Miami, Florida. Further, though they are registered under foreign laws, they clearly do not operate under foreign laws, the crews, as noted, signing American shipping articles and the only inspections of these ships being performed by agencies of the United States Government.” (120 N. L. R. B. 1097, 1101-1102, n. 7.)

In the most recent case the union, evidently unable to establish indirect American ownership of the ships flying flags of convenience, as in Peninsular S Occidental, urged instead that jurisdiction should be asserted by the National Labor Relations Board regardless of the nationality of the owner of the vessel. The Regional Director dismissed the petition for an election, but the board ordered the petition reinstated to resolve the substantial and material issues presented (Eastern Shipping *190Corp. McCormack Shipping Corp. [S. I. U.], 12-RC 415 [9/21/59], CCH NLRB Dec. 1959-1960, ¶ 56,698).

Accordingly, the National Labor Relations Board apparently does not consider the fact that the employer is a foreign entity operating a ship under the flag of a foreign country as an insurmountable barrier to the assertion of its jurisdiction in labor disputes. For all that appears, the board may take the view that its jurisdiction is proscribed by the Bens case only when some pre-existing, previously confined shipboard dispute spills onto the dock, where an American union lends a hand. (Cf. Comment Yale L. J., op. cit. supra, p. 521.) Short of that, the board may take the position that, while it will not afford relief under section 7 because of possible conflict with settled rules of international law and principles of comity, it will enforce the prohibitions of section 8 against an American union which engages in prohibited concerted activity directed against a foreign ship regularly doing business in a United States port. It must be borne in mind that the board may maintain jurisdiction if it has the statutory power either to protect or prohibit-. the activities in issue.

In such event, and at the very least, it can be argued strongly that this controversy involves rights and obligations exclusively within the primary jurisdiction of the National Labor Relations Board, to which under the Labor Management Relations Act both State and Federal courts must defer when conduct complained of in a labor dispute is either protected or proscribed by the act. The basis and rationale of this policy are stated in Garner v. Teamsters Union (346 U. S. 485, 490-491): “ Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties, i t went on to confine primary interpretation and application of its rules to a specific and especially constituted tribunal and described a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to o min unirorm application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies * * *. A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law. The same reasoning which prohibits federal courts from intervening in such cases, except by way of review or on application of the federal Board, precludes state courts from doing so. Cf. *191Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41; Amalgamated Utility Workers v. Consolidated Edison Co., 309 U. S. 261.”

In San Diego Unions v. Garmon (359 U. S. 236, 244) the Supreme Court defined the boundaries of judicial action still more sharply, holding that when “ an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted” (p. 245). The court stated (pp. 244-245): “At times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. What is outside the scope of this court’s authority cannot remain within a State’s power and state jurisdiction too must yield to the exclusive primary competence of the Board.”

Chapter 7 of title 29 of the United States Code will be searched in vain for language to support the contention that by statutory inhibition the jurisdiction given the National Labor Relations Board by the Labor Management Relations Act does not encompass labor disputes involving “ foreign ” ships. The term “ commerce ” includes “ trade, traffic, commerce, transportation * * • among the several States * or between any foreign country and any State * * ® or between points in the same State * * * but through * * * any foreign country” (§ 152, subd. [6]). The term “ affecting commerce ” includes ‘1 burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce ” (§ 152, subd. [7]).

We are told that Congress created the National Labor Relations Board to provide reasonable measures to prevent the disruption of “ interstate and foreign commerce ” (Consolidated Edison Co. v. Labor Bd., 305 U. S. 197, 221-222 [1938]). That the dispute at issue in this case has disrupted “ foreign commerce ” is beyond argument. The decision in the Benz case, relying as it does exclusively on negative legislative history, must be confined rigorously to the fact situation presented by that case. Otherwise, the finding that the Labor Management Relations Act does not apply to “wage disputes arising on foreign vessels between nationals of other countries when the vessel comes within our territorial waters ” (353 U. S. 138, p. *192142) would ignore the plain provisions of the act. Throughout the Bens case the court carefully limits the scope of its decision by restrictive language such as “ such disputes” and the “ circumstances such as those posed here” (pp. 142,144).

Accordingly, neither the act, the board nor the Federal courts have ever held that the plain terms of the Labor Management Relations Act do not encompass “foreign ” shipping. To the contrary, the board and the courts have indicated that the act may apply when a union of American workmen takes collective action against a foreign ship in the interest of preserving ‘ ‘ the terms and conditions of their employment ” by stabilizing “ competitive wage rates and working conditions within and between industries ” (U. S. Code, tit. 29, § 151). (Cf. Afran Transp. Co. v. National Maritime Union, op. cit. supra; Eastern Shipping Corp. [S. I. U.], op. cit., supra.)

Accordingly, the order denying defendants’ motion to dismiss the complaint for lack of jurisdiction should be reversed and the motion granted, and the judgment granting a permanent injunction should be reversed and the complaint dismissed, both reversals on the law and the facts.

Valente and McNally, JJ., concur with Breitel, J.; Botein, P. J., dissents and votes to reverse and dismiss the complaint in opinion, in which Stevens- J., concurs.

Order and judgment modified, on the law and on the facts and in the exercise of discretion, to insert the word “ such ” in the second ordering paragraph as mentioned in the opinion of Mr. Justice Bkeitel, and, as so modified, affirmed, with costs to plaintiff-respondent.

Settle order.