(dissenting) :
I dissent.
The claims pressed by Arguelles are almost totally dependent upon an interpretation and application of the collective bargaining agreement between his labor union and his employer. Arguelles invokes that agreement; he is bound by it, including its requirement of resort to its grievance and arbitration procedures for the settlement of contract disputes. The majority forgoes the obvious advantages of having such claims adjudicated within the framework of that agreement because it perceives that the special protection traditionally accorded seamen with respect to prompt payment of wages as evidenced by 46 U.S.C.A. § 596 requires that wage claims be heard initially in a district court. I think the purpose of the statute unthwarted and the protection of seamen undiminished by enforcement of the contract’s requirement of arbitration in which the seaman is represented by a union representative skilled in the interpretation of the collective bargaining agreement upon which the claim is based.
The statute upon which the plaintiff relies has a long history. Its forerunners 1 were enacted at a time when there was a not uncommon practice of discharging seamen in a foreign port without any money, rendering them easy prey to a shipowner desiring a lower wage scale. There were in those days no collective bargaining agreements to mitigate the harshness of the seaman’s working conditions or to lend him protection at the time of discharge. The statute protected seamen “from the harsh consequences of arbitrary and unscrupulous action of their employers, to which, as a class, they are peculiarly exposed.” Collie v. Fergusson, 281 U.S. 52, 55, 50 S.Ct. 189, 191, 74 L.Ed. 696 (1930).
The circumstances requiring protection of seamen from discharge in foreign ports without sufficient funds are now largely dissipated. \Though the dissipation may have resulted, in large part, from the existence of the statute, collective bargaining agreements now bar the return of the harsh practices of the Eighteenth Century.2 The collective bargaining agreement and the maritime union stand as protection to the seamen, guarding against overreaching by the employer. When a claim under the statute is wholly, or largely, dependent on an interpretation and application of the collective bargaining agreement, the purpose of the statute is not frustrated by resort to grievance procedures established between the employer and the union.
To be balanced against the purpose of the act providing for prompt payment of wages of seamen, 46 U.S.C.A. § 596, is the purpose of the federal labor laws. These laws “seek to promote industrial peace and the improvement of wages and working conditions by fostering a system of employee organization and collective bargaining.” Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842. When a claim is based on the terms of the collective bargaining agree*1073ment,3 the Supreme Court, interpreting § 301(a) of the Labor Management Relations Act,4 has required resort to the grievance processes under that agreement.5
Since the employee’s claim is based upon the breach of the collective bargaining agreement, he is bound by the terms of that agreement which govern the manner in which contractual rights may be enforced. For this reason, it is settled that the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement.
Vaca v. Sipes, supra, at 184, 87 S.Ct. at 914.
Mandatory use of grievance procedures is of great benefit, both to the employer and to the union. And it cannot be said, “in the normal situation, that contract grievance procedures are inadequate to protect the interests of an aggrieved employee until the employee has attempted to implement the procedures and found them so. * * * If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation ‘would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.’ ” Republic Steel Corp. v. Maddox, 379 U.S. 650, 653, 85 S.Ct. 614, 616, 13 L.Ed.2d 580.
I see nothing in the language or purpose of 46 U.S.C.A. § 596 which requires the disruption of collective bargaining agreements governing maritime claims contrary to the intention of Congress as expressed in § 301(a) of the Labor Management Relations Act.6 I would require the use of union grievance and arbitration procedures in settling a seaman’s claim when that claim is based on the collective bargaining agreement between his union and his employer, an agreement by which the employee is bound and which, properly interpreted, determines his rights.
. Act of July 20, 1790, ch. 29, § 6, 1 Stat. 133 ; Act of June 7, 1872, ch. 322, § 35, 17 Stat. 269.
. I do not mean to intimate that the statute has no continuing utility. Clearly the union and the employers could not, under the guise of the collective bargaining agreement, negate seamen’s rights under the statute. Nor would I require resort to grievance procedures when a claim is based entirely upon the statute. See, e. g., Prindes v. S. S. African Pilgrim, 4 Cir., 266 F.2d 125 (wrongful withholding of amount admittedly due in order to secure release to claim for further wages). Suits under the statute should also ,bo allowed when no other means to adjudicate the claim is clearly or readily available. See, e. g., Gkiafis v. S. S. Yiosonas, 4 Cir., 387 F.2d 460 (claim of foreign seaman).
. The claim here is based almost entirely on the collective bargaining agreement. The overtime wage claim is dependent upon an interpretation of the agreement. The statutory claim under 46 U.S.C.A. § 596 requires an interpretation of the agreement to answer the question whether the ship was in port while anchored off Cap St. Jacques.
. 29 U.S.C.A. § 185(a).
. See TWUA v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 ; General Electric Co. v. Local 205, UEA, 353 U.S. 547, 77 S.Ct. 921, I L.Ed.2d 1028 ; United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 ; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 ; Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 ; Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842. Not only is resort to arbitration required but courts should refuse to review the merits of an arbitration award. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424.
. 29 U.S.C.A. § 185(a).