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Pierre v. Hess Oil Virgin Islands Corp.

decided: June 25, 1980.

MARCELLE JEAN PIERRE
v.
HESS OIL VIRGIN ISLANDS CORPORATION



APPEALS FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. THOMAS AND ST. JOHN (D.C. Civil No. 167-1973)

Before Adams, Maris and Sloviter, Circuit Judges.

Author: Maris

Opinion OF THE COURT

These are appeals from a final judgment of the District Court of the Virgin Islands. The plaintiff, Marcelle Jean Pierre, a permanent resident of St. Croix, had been employed by the defendant, Hess Oil Virgin Islands Corporation as a seaman. He brought the present civil action in admiralty to recover overtime and vacation pay which he alleged to be due him. The district court awarded him $408.98 in vacation pay but denied his claim for overtime pay. Both parties have appealed.

In connection with its petroleum refinery operation in St. Croix, the defendant operates a fleet of tugboats to assist vessels to enter and leave its harbor at Limetree Bay and for general service in the Caribbean Sea. It was in the operation of these tugboats that the plaintiff was employed from February 11, 1970, to January 15, 1972, as a deckhand. The defendant's tugboats were registered in the Republic of Panama and flew the Panamanian flag. The district court accordingly held, and we agree, that under the traditional rules of maritime law the Panamanian law governs the employment agreement between the parties which is involved in this litigation. Lauritzen v. Larsen, 345 U.S. 571, 584, 586, 73 S. Ct. 921, 929, 930, 97 L. Ed. 1254 (1953); Grivas v. Alianza Compania Armadora, S. A., 276 F.2d 822 (2d Cir. 1960).

The plaintiff was employed at the fixed sum of $600 per month, later increased to $660 per month. The employment agreement was oral but it is clear that the plaintiff understood that his employment was on a monthly basis for a fixed sum of $600 and that it was not on an hourly basis. Thus, the plaintiff testified:

"A. Well, I asked him (Captain Ambjor who hired him) if it is an hourly wage and he said no, it is a lump-sum system, they are working by the month now."

Plaintiff now contends, however, that he was, nonetheless, entitled to overtime pay in addition to his monthly wage under the Panamanian law. Both parties agree that he was also entitled to vacation pay under that law and the award of $408.98 by the court to the plaintiff on this score is not contested by the defendant. The defendant strongly asserts, however, that the plaintiff, as an employee on a fixed monthly wage, was not entitled to overtime pay under the law of Panama. The district court held that under the Panamanian law a seaman employed for a fixed sum per month was not entitled to overtime pay in addition, and it, accordingly, denied the plaintiff's claim for such pay. We reach the same conclusion.

It is said by Dr. Arturo Hoyos of the University of Panama in his article on the Labour Law of Panama, Part I, The Individual Employment Relationship, Art. 399 (4 International Encyclopaedia for Labour Law and Industrial Relations, 1979, p. Panama-132):

"399. The relations between employers and workers on ships which are devoted to international service are governed in general by the provisions of the L(abour) C(ode) concerning all types of employees and especially by the provisions on this type of workers. . . ."

The provisions of the Panamanian law thus applicable are contained in the Panamanian Labor Code, Law No. 67 of November 11, 1947, as amended by Law No. 7 of January 26, 1950.*fn1 The provisions which appear pertinent follow:

Law No. 67 of November 11, 1947

PART I. Individual Contracts of Employment

7. An individual contract of employment shall mean an agreement, whether oral or in writing, whereby a person binds himself to give his services to another or to carry out work for another under his constant ...


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