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NAVIOS CORPORATION v. NATIONAL MARITIME UNION AMERICA. (12/15/60)

December 15, 1960

NAVIOS CORPORATION, APPELLANT,
v.
NATIONAL MARITIME UNION OF AMERICA.



Appeals, Nos. 147, 148, 155 and 156, Jan. T., 1961, from orders of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1960, Nos. 2065 and 2068, in cases of Navios Corporation et al. v. National Maritime Union of America et al., and Universe Tankship, Inc. et al. v. Same. Orders affirmed.*fn*

COUNSEL

Samuel B. Fortenbaugh, Jr., with him Herbert G. Schick, and Clark, Ladner, Fortenbaugh & Young, for appellants.

Herbert Brownell, with him Breck P. McAllister, of the New York Bar, and Earle K. Shawe, with him Sidney J. Barban, of the Maryland Bar, for appellant.

Nathan I. Posner, with him Israel Packel, Jay G. Ochroch, and Fox, Rothschild, O'Brien & Frankel, for intervening appellant.

Abraham E. Freedman, with him Marvin I. Barish, and Freedman, Landy & Lorry, for appellees.

Robert M. Landis, and Barnes, Dechert, Price, Myers & Rhoads, for interested parties, under Rule 46.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 402 Pa. Page 326]

OPINION BY MR. CHIEF JUSTICE JONES.

These appeals arise out of suits instituted by the plaintiffs seeking to enjoin the defendant unions and certain of their officers from picketing or in any other manner interfering with the unloading and servicing, at the Port of Philadelphia, of a ship flying a Liberian "flag of convenience."

The matter first came before the court below on the plaintiffs' motions for a preliminary injunction. After

[ 402 Pa. Page 327]

    a full hearing, the learned chancellor refused a preliminary injunction and contemporaneously entered decrees nisi dismissing the complaints, to which exceptions were subsequently filed and still remain undisposed of. Accordingly, final decrees have not been entered. The present appeals were promptly taken by the plaintiffs, pursuant to Section 15 of the Labor Anti-Injunction Act of June 2, 1937, P.L. 1198, 43 PS § 206o, from the court's refusal of a preliminary injunction; and upon application of counsel, we forthwith advanced the appeals for argument, as contemplated by the Act.

The fundamental basis for the chancellor's action in denying the plaintiffs injunctive relief is that exclusive jurisdiction of the subject matter of the dispute is vested in the National Labor Relations Board. Whether that is so, under the facts of the case, is the legal problem to which we shall now address ourselves.

The plaintiffs, Universe Tankships, Inc., and Navios Corporation, are respectively the owner and time charterer of a bulk cargo vessel, the S.S. Ore Monarch, which transports iron ore from Puerto Ordaz, Venezuela, to the Fairless Works of the United States Steel Corporation at Morrisville, Pennsylvania. Because of the limited depth of the Delaware River, above Philadelphia, which the vessel necessarily must ply in order to reach Morrisville, she unloads a portion of her cargo at Philadelphia to lessen her draft before attempting to proceed upstream for delivery of the balance of the cargo at Morrisville. The S.S. Ore Monarch arrived at Philadelphia on October 21, 1960, laden with a cargo of iron ore from Puerto Ordaz for the United States Steel Corporation at Morrisville and was berthed at Pier 122 South on the Delaware River at Philadelphia for the partial unloading operation above mentioned.

All of the S.S. Ore Monarch's crew of forty-eight men are, with three exceptions, aliens and all, except

[ 402 Pa. Page 328]

    for the captain and chief engineer, are members of the Global Seamen's Union, an unincorporated association registered in the Cayman Islands, British West Indies, with which organization Universe Tankships, Inc., the owner of the vessel, has an existing labor agreement.

On October 26, 1960, Universe Tankships, Inc., and Navios Corporation filed complaints in the Court of Common Pleas of Philadelphia County against the National Maritime Union of America, the Seafarers' International Union of North America, the International Maritime Workers' Union, the International Longshoremen's Association, Local 1291, and certain officers of these unions for a temporary and, thereafter, a permanent injunction restraining the defendants from causing the S.S. Ore Monarch to be picketed or in any way interfering with the operation, management, internal economy and affairs of the S.S. Ore Monarch or any vessel owned or chartered by the plaintiffs; or in any manner inducing others to refuse to service such vessels. The plaintiffs also demanded damages.

The complaints alleged, inter alia, that, at or about the time that the S.S. Ore Monarch berthed at Pier 122 South, the defendants caused two persons to picket in front of the entrance to the pier carrying signs bearing the legend, "AMERICAN MARITIME UNIONS PROTEST UNFAIR LABOR PRACTICES OF 'ORE MONARCH'", and also caused a small boat carrying pickets with similar signs to cruise in the vicinity of the S.S. Ore Monarch, the picketing activity having continued up to the institution of the suits; that the defendants caused the pickets to prevent, or attempt to prevent, deliveries of supplies and victuals to the S.S. Ore Monarch by threats of force and intimidation to drivers of trucks undertaking to make such deliveries; that at approximately 8 p.m. on October 21, 1960, while the S.S. Ore Monarch was discharging her cargo, two agents of the

[ 402 Pa. Page 329]

International Longshoremen's Association, Local 1291, boarded the S.S. Ore Monarch and ordered members of Local 1291, then working at the hatches of the ship, to cease working, the orders being promptly obeyed; that the unloading operations have not been resumed since that time; that the purpose of the above mentioned and similar actions of the defendants is to procure the breach of the labor agreement existing between Universe Tankships, Inc., and Global Seamen's Union, and to coerce Universe Tankships, Inc., to compel or require the members of its ship's crew to join the International Maritime Workers' Union; that the aforesaid actions of the defendants have prevented and are preventing the unloading, bunkering and victualling of the S.S. Ore Monarch, thereby causing the plaintiffs to suffer irreparable injury.

In the course of the hearings, the court granted Global Seamen's Union leave to intervene as a party plaintiff; and on November 4, 1960, the intervenor filed its separate complaint alleging substantially the same facts as the complaints filed by Universe Tankships, Inc., and Navios Corporation. Global's complaint asked, in addition, that the defendants be enjoined from inducing members of Global Seamen's Union from disavowing their relationship therewith and from compelling the employers of the S.S. Ore Monarch's crew to breach their contract with Global Seamen's Union and from entering into a contract with Universe Tankships, Inc., while the latter's contract with Global Seamen's Union endured. Otherwise, Global's complaint sought the same injunctive relief as was prayed for by Universe Tankships, Inc. Global did not, however, demand damages.

The facts adduced at the hearings in the court below further disclosed that the S.S. Ore Monarch was built in 1956 at Kure City, Japan, and was registered in New York on January 9, 1957, as a Liberian vessel,

[ 402 Pa. Page 330]

    which, however, has never been to Liberia. Nor has the ship ever been registered by any other country or flown any other flag than that of Liberia.

Universe Tankships, Inc., is a Liberian corporation, wholly owned by Oceanic Tankships, S.A., a Panamanian corporation, which, in turn, is wholly owned by D. K. Ludwig and W. W. Wagner, both of whom are American citizens.

Navios Corporation is a Liberian corporation, wholly owned by Navigen Corporation, a Liberian corporation also, which, in turn, is wholly owned by the United States Steel Corporation, and is registered in the Bahama Islands with its home office in Nassau.

The Cayman Islands are a British possession located approximately 250 miles south of Cuba in the British West Indies. Their population is between six and seven thousand inhabitants.

Global Seamen's Union was registered in the Cayman Islands on June 1, 1959, under the provisions of Trade Union Law 3 of 1952. Apparently it is the only union that has ever been registered in the Cayman Islands. The registration took place when a man who said that he was the Secretary-Treasurer of the Global Seamen's Union submitted a list of officers of the Union and the signatures of 15 or 20 men whom he said were its members. No official investigation of the union was made prior to its being admitted to registration in the Cayman Islands, whose registrar of trade unions testified that company domination does not disqualify a union from registering in the Cayman Islands. There is no record of any activity on the part of the union prior to its registration.

The S.S. Ore Monarch's articles of agreement with the members of its crew require all such as are eligible to join the Global Seamen's Union within thirty days after signing the articles.

[ 402 Pa. Page 331]

On January 5, 1960, the Secretary of Universe Tankships, Inc., sent to the captain of the S.S. Ore Monarch a letter cautioning the members of the crew not to join any American unions and to abide by the contract between Global Seamen's Union and Universe Tankships, Inc. The captain was instructed to read the letter aloud to his unlicensed men at his first opportunity outside the territorial waters of the United States and, that, he did.

The time charter between Universe Tankships, Inc. and Navios Corporation is for a term of seven years, calculated from the time of the vessel's delivery at Puerto Ordaz, Venezuela, after having been released from the builder's yard in Japan. The charter provides that all differences or disputes with respect to performance and construction of the charter "shall be determined at the port of New York in accordance with the laws of the United States." Another clause of the charter provides that "All bills of lading, receipts or other shipping documents issued hereunder shall contain an appropriate Clause Paramount substantially in the following form: 'This bill of lading or contract of carriage shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States....'" Payments due under the charter are to be made in United States currency and the ship is to be redelivered, unless otherwise mutually agreed, "at the last port of discharge which shall be on the U.S. Atlantic or Gulf Coast."

No evidence was introduced that the picketing was otherwise than peaceful or that it was accompanied by any violence whatsoever. The chancellor's finding to such effect, amply supported as it is by the record, must be taken on these appeals as an established fact.

If, as the court below held, this case involves a labor dispute within the jurisdiction of the National Labor Relations Board, then the picketing and other activities

[ 402 Pa. Page 332]

    of the defendants are either protected by Section 7 of the National Labor Relations Act of July 5, 1935, c. 372, 49 Stat. 449, as amended, 29 U.S.C.A. § 157, or constitute an unfair labor practice under the standards of Section 8(b) of the same statute.

In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 (1959), the United States Supreme Court declared that, "When an activity is arguably subject to § 7 or § 8 of the [National Labor Relations] 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."

It seems abundantly plain that, on the rationale to be deduced from Supreme Court decisions in cognate relation, the activity of the defendants in the instant case is, at least, arguably subject to Sections 7 or 8 of the National Labor Relations Act, and that accordingly requires us to "defer to the exclusive competence of the National Labor Relations Board" over the subject matter.

The appellants argue, however, that the picketing and other activities of the defendants involve an interference with the internal economy of a foreign ship and its foreign workers within the restrictive scope of the decision in Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138 (1957). ...


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