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VIDOVIC v. LOSINJSKA PLOVIDBA OOUR BROADARSTVO

March 1, 1994

SLAVKO VIDOVIC
v.
LOSINJSKA PLOVIDBA OOUR BROADARSTVO; ISLAND SHIPPING, S.A.; COOL WIND NAVIGATION, INC.; and M/V ZAMET



The opinion of the court was delivered by: JOHN R. PADOVA

 Padova, J.

 In this case, a foreign seaman injured in the course of his employment aboard a vessel sued the foreign owners of that vessel for damages from personal injuries and penalty wages. Pursuant to Federal Rule of Civil Procedure 12(b)(1), the shipowners have moved to dismiss for lack of subject matter jurisdiction. *fn1" For the following reasons, I will deny the motion.

 Plaintiff Slavko Vidovic, a merchant seaman from the former nation of Yugoslavia, *fn2" alleges the following facts in his complaint. Defendants Losinjska Plovidba Oour Broadarstvo, Island Shipping, S.A., and Cool Wind Navigation, Inc. are Croatian corporations that own, operate, possess, manage, and control the M/V Zamet (the "Vessel"). The Vessel is registered in Panama, engages in foreign commerce, and regularly calls at ports in the United States.

 On November 29, 1992, Vidovic signed articles of engagement and joined the Vessel as an employee in Puerto Rico. Vidovic was employed as a member of the Vessel's crew in the capacity of First Mate and was paid a salary of $ 1900 per month. When the Vessel was docked in the Port of Chester, Pennsylvania on May 16, 1993, Vidovic, while engaged in the course of his employment and performance of his duties, fell from a ladder in the number two hatch of the Vessel. As a result of this accident, Vidovic suffered serious injuries, including a fractured vertebra. Vidovic claims that his injuries resulted from the Vessel's unseaworthiness and the negligence of defendants and their agents, servants, and employees.

 Vidovic was immediately taken to a nearby hospital by the United States Coast Guard. Although defendants owed Vidovic more than two months of his earned wages at that time, they never tendered payment to him on May 16, 1993. Thereafter, defendants ignored Vidovic's demand for the full amount of his earned wages. Based upon these allegations, Vidovic asserts claims for: (1) his personal injuries (count I); (2) maintenance, cure, earned wages, and unearned wages (count II); and (3) penalty wages (count III). *fn3"

 Defendants have moved to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff bears the burden of persuasion. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 115 L. Ed. 2d 1007, 111 S. Ct. 2839 (1991). Dismissal under Rule 12(b)(1) is proper only when the claim "'clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or . . . is wholly insubstantial and frivolous.'" Id.

 Pursuant to Rule 12(b)(1), defendants first move to dismiss Vidovic's claim for penalty wages under the Seaman's Wage Act, 46 U.S.C.A. § 10313 (West Supp. 1993), which provides, in relevant part, that:

 
(f) At the end of a voyage, the master shall pay each seaman the balance of the wages due the seaman within 24 hours after the cargo has been discharged or within 4 days after the seaman is discharged, whichever is earlier. When a seaman is discharged and final payment of wages is delayed for the period of time permitted by this subsection, the seaman is entitled at the time of discharge to one-third of the wages due the seaman.
 
(g) When payment is not made as provided under subsection (f) of this section, without sufficient cause, the master or owner shall pay to the seaman 2 days' wages for each day payment is delayed.
 
(i) This section applies to a seaman on a foreign vessel when in a harbor of the United States. The courts are available to the seaman for the enforcement of this section.

 Thus, the Seaman's Wage Act expressly confers subject matter jurisdiction over a penalty wage claim brought by a foreign seaman against a foreign vessel owner. See Velidor v. L/P/G Benghazi, 653 F.2d 812, 818 & n.11 (3d Cir. 1981). *fn4" Jurisdiction over a wage claim made in good faith under this statute is mandatory. See Tismo v. M/V Ippolytos, 776 F. Supp. 928, 933 (D.N.J.), aff'd, 947 F.2d 937 (3d Cir. 1991). Lack of good faith means that the claim is devoid of any prospect of success. See Castillo, 937 F.2d at 244.

 To recover penalty wages under the statute, Vidovic must prove that: (1) the voyage ended; (2) he, as a foreign seaman, was discharged in a port of the United States; and (3) without sufficient cause, payment of wages was withheld for more than four days after the date of his discharge. See 46 U.S.C.A. § 10313(f),(g),(i); Su v. M/V Southern Aster, 978 F.2d 462 (9th Cir. 1992), cert. denied, 124 L. Ed. 2d 244, 113 S. Ct. 2331, 113 S. Ct. 2332 (1993). Vidovic has some prospect of success on these elements. As to the first, evidence indicates that the voyage ended when cargo was discharged in Savannah, Georgia on May 18, 1993. See April Hale Aff.

 As to the second element, there is evidence that when the Vessel was docked in the port of Chester, Pennsylvania on May 16, 1993, Vidovic, a foreign seaman employed on the Vessel, was injured and taken off the Vessel for required medical treatment. See U.S. Coast Guard Report of Marine Accident; Letter from April Hale to U.S. Department of Justice dated May 18, 1993. A seaman who is forced to leave his ship because of injury requiring medical treatment is deemed "discharged" under the Seaman's Act. See Cerda ...


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