The opinion of the court was delivered by: WELSH
The Consular Representative of the Consulate General of Greece petitioned this Court for an order for the arrest and removal of four Greek seamen from the vessel S/S 'syros' now in the Port of Philadelphia, for repatriation to Greece to answer charges of offenses against the Penal and Disciplinary Code of the Merchant Law of Greece. The seamen's exceptions to the petition on the ground of lack of jurisdiction were dismissed, whereupon they sought a writ of prohibition in the Circuit Court precluding this proceeding.
The Circuit Court declined to pass upon the question of jurisdiction in the absence of findings of fact respecting the exact nature of the dispute, and dismissed the petition; that Court noted the existence of a substantial dispute as to the facts upon which the petition is based, and indicated that if the dispute is one respecting wages, as asserted by the seamen, jurisdiction is not conferred upon this Court by the Treaty of 1902, 33 Stat. 2122, as amended. We concur in the opinion previously filed herein (McGranery, J.) D.C., 81 F.Supp. 411, holding that the treaty is in force, that it has been abrogated and amended as to wage disputes by the Seamen's Act of 1915, 38 Stat. 1164, and that jurisdiction is dependent upon proof of difficulties and disorders on the vessel exclusively within the jurisdiction of the Consul, i.e., disputes other than those for wages. Our inquiry is therefore concerned with the facts forming the basis of charges of 'assault, disobedience and mutiny' against the four seamen, and a determination as to whether such facts bring the controversy within the exclusive jurisdiction of the Consul. The trial was a protracted one due to language difficulties and the necessity for interpreting testimony and translating documents offered in evidence. From the trial record, we make the following,
2. The respondents are Georgios Therianos, Manolis Kasmas, Andreou Mihail, and Spyridon Zannos. They are subjects of the Kingdom of Greece ane merchant seamen on the S/S Syros, which is owned and operated by a citizen of Greece, registered in and flying the flay of that country, and presently in the Port of Philadelphia and the jurisdiction of this Court. The master, officers and crew of the S/S Syros are Greek nationals.
3. The petition is filed under Article 12 of the Greek Consular Convention of 1902, 33 Stat. 2129, duly ratified and proclaimed, which provides that consuls and consular agents shall have exclusive charge of the internal order of merchant vessels of their nation and shall take cognizance of differences between the officers and crew, particularly in reference to adjustment of wages and execution of contracts; and that the Courts in the United States shall render forcible aid to consular officers in such matters. The article of the Treaty giving exclusive jurisdiction to consuls in wage matters was abrogated by the Seamen's Act of 1915, which gave jurisdiction in such matters to the United States Courts, and the abrogation was agreed to by Greek authorities.
4. Seaman Zannos signed on the S/S Syros at Cardiff, England on May 31, 1948, and was discharged by Microulis, a Greek consular officer, at Baltimore on August 14, 1948 in accordance with orders of the Greek Mercantile Marine Ministry. His discharge was ordered by reason of charges pending against him of 'refusal to perform services, mutiny, &c.', in violation of the Articles of the Penal and Disciplinary Code while previously serving on the S/S Kyvernitis. Zannos was notified of the charges by the Greek consular officer at Cardiff, England in December, 1947. Thereafter the petitioning consular officer in the United States was instructed by the Ministry of Merchant Marine to discharge seamen against whom charges were pending and to prevent their being signed as members of the crews of any Greek vessel. The list of seamen charged with such offenses and furnished to the petitioner included the name of Seaman Zannos. Entry was made of the discharge in his seamen's book showing that the discharge was 'by order of the Greek Ministry of Mercantile Marine charged according to the accusation'.
5. Fireman Mihail signed on the S/S Syros at Cardiff, England May 31, 1948 and was discharged by the petitioning consular agent at New York on November 23, 1948 in accordance with the orders of the Greek Mercantile Marine Ministry. His discharge was ordered by reason of charges pending against him of violation of the Penal and Disciplinary Code of the Greek Mercantile Marine. While previously serving on the S/S Kyvernitis, Mihail was notified of the charges by the Greek consular officer at Cardiff in December, 1947. Thereafter the petitioner was instructed by the Ministry of Merchant Marine to discharge seamen against whom charges were pending and to prevent their being signed as members of the crews of other Greek vessels. The lists of seamen charged with such offenses included Fireman Mihail.
6. Seaman Kasmas was signed on the S/S Syros at Cardiff, England on May 31, 1948, and Seaman Therianos at Norfolk, Virginia on June 23, 1948. Both were discharged by the petitioner because of charges of 'violation of the Penal Code in accordance with 43099, order of the Mercantile Ministry'.
7. All of the crewmen respondents herein were employed under the terms of a collective agreement made at Cardiff, England on September 2, 1943 between the owners of Greek merchant vessels and representatives of the Greek seamen's unions, therein named. The Agreement provided for the payment of a bonus after six months continuous service and general regulations governing employment. The Agreement was made under the following circumstances: Prior to World War II, Greek merchant seamen were organized into the Pan Hellenic Federation (called PNO), a trade union which functioned wholly within the Kingdom of Greece. Upon occupation of Greece by the central powers in 1942, about 9,000 of the 10,000 Greek seamen outside of Greece formed four unions covering different ratings, which unions confederated in 1943 into the Federation of Greek Maritime Unions (known as OENO), which concluded the collective agreement at Cardiff as aforesaid after wide circulation among and approval by its members. OENO has continued as a labor union of Greek seamen to the present time, maintaining its headquarters at Cardiff, and branches at New York and other ports.
8. The collective agreement of 1943 was given official effect by the Emergency Act No. 3276/1944, which authorized collective agreements between associations of ship owners and seamen considered representative in the discretion of the Minister of Greek Merchant Marine, fixing wages, bonuses and the terms and conditions of employment generally. Penalties were provided for violation of any collective agreement subject to the Act, and, if such violations fell within the provisions of the Penal and Disciplinary Code of the Merchant Marine, the penalty provided by the code.
Articles 33 to 39 of the code deal with 'Assault, Insubordination and Mutiny' and provide punishment for, inter alia, offending superiors by words, threats or gestures; disobeying or opposing an official order to perform services on the vessel; assault or violent acts against the officers; combining or conspiring to refuse or oppose an order; or doing any act against the person, liberty, or authority of the officers.
9. In November, 1947, negotiations were conducted in Athens at the invitation of the Greek government in which the merchant ship owners, the maritime union of Greece, PNO, and the Federation of Maritime Unions founded at Cardiff, OENO, participated. The result was an agreement dated November 29, 1947, between the ship owners, and the PNO, which eliminated, inter alia, continuous service bonuses and the payment of extra compensation to seamen for opening and closing hatches in port. OENO refused to consent to modification of the existing collective agreement with the ship owners, did not become a party thereto, and has persistently refused to accept or recognize the validity of the modification with respect to the employment of its members. The Greek Ministry had issued a regulation dated November 11, 1947 reciting the existence of disputes over demands of crews for extra pay for certain work and declaring that seamen were not entitled to extra pay for opening and closing hatches. Prior thereto a custom had been established by long usage and recognized by ship owners under which seamen were paid additional compensation for opening and closing hatches when longshoremen or others did not perform such work.
10. Beginning May 31, 1948, at Southhampton, England, the itinerary of the S/S Syros was: Wabana, Newfoundland; Cardiff, England; Norfolk, Virginia- June 23, 1948; Cherbourg, France; Rouen, France; Baltimore, Maryland- August 14, 1948; Algiers, North Africa- September 1, 1948; Phillippeville, Tunis; England; Narvic, Norway; and Philadelphia- November 9, 1948. When the steamship arrived at Wabana the crew were ordered to open the hatches. They refused to do so without additional pay, whereupon the chief officer agreed to pay them $ 100.00 and the work was performed. Upon return to Cardiff they again refused to open the hatches without extra compensation, which was refused, and the work was done by the officer personnel. At Norfolk a like demand was made and refused, and the opening and closing of the hatches was performed by shore workmen. The crew also refused to open and close the hatches at Cherbourg and Rouen unless they were paid $ 180.00, and the work was again performed by the ship's ...