The opinion of the court was delivered by: CAHN
Plaintiff, a citizen merchant seaman, seeks to collect penalty wages and to declare invalid certain regulations of the United States Coast Guard under which seamen's wages are computed.
Plaintiff was on foreign articles on defendant Mathiasen's "SS Sohio Resolute" from October 31, to December 5, 1973. On December 6, 1973, he rejoined the crew of said vessel in the capacity of engineman and signed foreign articles providing compensation at the rate of $663.13 per month. Plaintiff worked through and including January 7, 1974, when he signed off articles and was paid for 32 calendar days although he was given credit for board and lodging for 33 calendar days. Plaintiff claims that he was not paid for one calendar day on which he worked between the period December 6, 1973, and January 7, 1974. He also claims that he was not paid for October 31, 1973.
Plaintiff pleads: that his claim is in admiralty under Fed.R.Civ.P.9(h); that statutory jurisdiction is conferred by 28 U.S.C. §§ 1333, 1331, 1337 and 1343; that his rights have been infringed under the Fifth, Thirteenth and Fourteenth Amendments to the United States Constitution; that he is entitled to judgment declaratory or otherwise, of the rights of merchant seamen to full wages and penalty wages under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. and under 46 U.S.C. §§ 591, 596, 597, 599, 600, 641, 673, and 682; that improper withholding deductions were taken against his wages for federal income tax purposes; and that he is entitled to appropriate injunctive and declaratory judgment relief. Plaintiff also brings this matter on behalf of 60,000 seamen similarly situated in a class action pursuant to Fed.R.Civ.P. 23, but decision in regard to class action status is to be deferred until this Court acts upon defendants' motions to dismiss.
Plaintiff is correct that from December 6, 1973, to January 7, 1974, he worked for a period of 33 days and was paid only his monthly rate plus two days. The question which the plaintiff raises is whether citizen seamen who sign foreign articles providing for compensation calculated at a stated rate per month are entitled to an extra day's pay in those months containing 31 days. The defendant, Mathiasen's Tanker Industries, Inc., has moved to dismiss the complaint on the grounds that the Fifth, Thirteenth and Fourteenth Amendments are inapplicable, the plaintiff has failed to exhaust his remedies under a collective bargaining agreement,
the complaint fails to state a claim upon which relief can be granted under 46 U.S.C. §§ 591, 596, 597, 599, 600, 641, 673 or 682, and the complaint fails to state a claim for relief under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Mathiasen's also moves to dismiss on the ground that plaintiff has failed to join an indispensable party in regard to his claim of improper withholding of income taxes and that plaintiff has failed to comply with Fed.R.Civ.P. 23 and Local Rule 45 in regard to class action allegations.
The defendants, United States Coast Guard and Rear Admiral B. F. Engel, move to dismiss under Fed.R.Civ.P. 12(b)(1), (6) on the ground of lack of subject-matter jurisdiction and failure to state a claim.
Plaintiff's complaint must be dismissed. In the first place, there is no violation of the Fifth Amendment. Plaintiff contends that he has been deprived of his property consisting of wages without due process of law. An employee does not have a property right in his employment and his contractual right to wages is not subject to due process protection. Charland v. Norge Division, Borg-Warner Corporation, 407 F.2d 1062 (6th Cir. 1969); Fisch v. General Motors Corporation, 169 F.2d 266 (6th Cir. 1948), cert. denied, 335 U.S. 902, 69 S. Ct. 405, 93 L. Ed. 436 (1949). Plaintiff's reliance on Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972) is misplaced because that decision, invalidating prejudgment garnishment, involves deprivation of property rights under color of state law.
The Thirteenth Amendment does not apply to seamen's contracts. Robertson v. Baldwin, 165 U.S. 275, 17 S. Ct. 326, 41 L. Ed. 715 (1897); Petition of Den Norske Amerikalinje A/S, 276 F. Supp. 163 (N.D.Ohio 1967), rev'd on other grounds, sub nom., United States Steel Corporation v. Fuhrman, 407 F.2d 1143 (6th Cir. 1967), cert. denied, 398 U.S. 958, 90 S. Ct. 2162, 26 L. Ed. 2d 542 (1967).
The Fourteenth Amendment to the United States Constitution is a guarantee against state encroachment upon the rights of citizens. It does not apply in the absence of a connection between the governmental machinery of a state government and the person allegedly deprived of liberty or property. The mere fact of government involvement does not constitute state action unless the state's presence is significant. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972). Similarly, in Pendrell v. Chatham, 370 F. Supp. 494, 500 (W.D.Pa. 1974), the court found no state action when a nonprofit, private college refused to renew the contract of an over-65 year old female professor. In Pendrell, the college was state chartered, was exempt from state and local taxes, was subject to certain state regulations in its teacher-training program and was the recipient of state and federal funds for student aid and construction. The governmental connection involving the calculation of seamen's wages is less significant than the governmental connection in Pendrell. Plaintiff has failed to state a cause of action that the Fifth, Thirteenth and Fourteenth Amendments have been violated by his employer or by the Coast Guard in the computation of his wages. The cases of Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), involve procedural due process protection where a state college sought to dismiss a faculty member from his teaching position. These cases are not authority for plaintiff's contention that his substantive contractual right to receive wages is protected by either the Fifth or the Fourteenth Amendment.
It is also clear that plaintiff's contractual rights to wages have not been violated. Plaintiff signed on "at the rate of $663.13 per month." The term "month", when undefined, is commonly understood to mean a calendar month. Fogel v. Commissioner of Internal Revenue, 203 F.2d 347, 349 (5th Cir. 1953); Kennedy v. Pilot Life Insurance Company, 4 N.C.App. 77, 165 S.E.2d 676 (1969); Greulich v. Monnin, 37 Ohio L. Abs. 27, 45 N.E.2d 212, 218, 219 (Ohio App.1942). When the term "month" is used, its effect is not computed by counting days, but the time period is determined by the corresponding day in the next succeeding month unless the ending month has not so many days, in which case the last day is used. The rule
is so common and settled as to be defined in Black's Law Dictionary, 1159 (4th ed. 1951):
"Word 'month', unless otherwise defined, means 'calendar month', or time from any day of any of the months as adjudged in the calendar to corresponding day, if any, if not any, to last day, of next month."
Plaintiff also claims that the provisions of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq., entitled him to wages for all hours worked. Plaintiff's complaint alleges that he was employed at $663.13 per month plus overtime, and a calculation of the overtime pay is attached as an exhibit. Section 6(a)(4) of the Fair Labor Standards Act, 29 U.S.C. § 206(a), merely provides that a seaman is entitled to wages at "not less than the rate which will provide to the employee, for the period covered by the wage payment, wages equal to compensation . . . prescribed by [minimum hourly wage provisions] for all hours during such period when he was actually on duty . . ." Nothing is pleaded to establish that plaintiff's compensation is less than the two-dollar minimum wage prescribed by the Act, and accordingly his complaint in this regard must be dismissed.
Plaintiff relies on the statutes
which deal with seamen's wages to support his argument that work on the 31st day of a month entitles him to an extra day's pay over his monthly compensation and to penalty wages. Plaintiff, however, begs the question because these statutes do not deal with the method of ...