MARINE COOKS v. PANAMA S. S. CO.

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Argument of John Paul Jennings

Chief Justice Earl Warren: Number 403, Marine Cooks & Stewards, AFL, et al., Petitioners, versus Panama Steamship Company, Limited, et al.

Mr. Jennings, you may proceed.

Mr. John Paul Jennings: Mr. Chief Justice and may it please the Court.

We are here on certiorari to the Court of Appeals for the Ninth Circuit in a case in which that court has sustained a District Court order enjoining peaceful picketing by my client, a labor union.

The picketing protested the loss of jobs to members of the Marine Cooks & Stewards, the petitioner, and possible loss of more jobs in the future when a foreign vessel, the Nikolos, a vessel of Liberian registry, entered a trade previously occupied by an American vessel and resulting in the lay off of the American vessel and loss of jobs to the members of the petitioners' union.

Justice William O. Douglas: They entered a trade?

Mr. John Paul Jennings: The trade between the West Coast of Mexico and Tacoma, Washington.

This trade had been occupied by American vessel, the Ira Nelson Morris and that ship was laid off, the Nikolos went into the trade.

We also -- we maintain that the case, it's a case involving or growing out of a labor dispute within the meaning of the Norris-LaGuardia Act and therefore, the injunction was improperly granted.

We also challenge the jurisdiction of the Court which was predicated on a theory which we think this Court rejected in Romero against International Terminal Operating Company in 1959, that is that a -- a federal question case under Section 1331 can be predicated upon a maritime tort, that was the theory of the Court of Appeals.

Now these are the facts.

The petitioner, Marine Cooks & Stewards AFL, is one of a number of American unions representing seamen on the Pacific Coast.

The Marine Cooks & Stewards represents the stewards department pursuant to a certification of the National Labor Relations Board.

And that it's a party to a collective bargaining contract establishing wages, hours, and conditions and welfare provisions and pension plans, and things of that nature.

Now shortly before this case arose in June of 1957, Willoughby, the agent of the Marine Cooks & Stewards in the port of Seattle, Washington learned that the Nikolos was going to come in to the salt trade between the West Coast of Mexico and the Hooker Electro-Chemical plants in Tacoma, Washington.

Mr. Willoughby also learned that the Ira Nelson Morris, an American ship employing members of the petitioner, was laid off as a consequence of the entry of the Nikolos into the trade and that as a result, members of the various unions, including members of the petitioning union, were laid off.

Mr. Willoughby made inquiry of the Hooker Company in Tacoma to which the salt was consigned asking them whether they would permit him to put a picket line adjacent to the dock when the Nikolos came in.

He told them that he indented to picket the ship when it arrived and that he was like to get the ship dock, he would also picket it at the dock and he wanted to picket inside because he wanted to avoid the charge of a secondary boycott and picketing the Hooker Plant.

When the Nikolos arrived on the early morning of June the 10th of 1957, Mr. Willoughby in a small cabin cruiser called the Willoughby began circling around the Nikolos.

The little cruiser which he was using to circle around had a sign on it which said “Picket Boat” and the sign was later changed to a different and larger sign which said “AFL-CIO seamen protest loss of their livelihood to foreign flagships with substandard wages or substandard conditions.”

Willoughby, during the course of his circling, was invited to board the Nikolos and he talked to the master of the ship and he told him that the Nikolos was interfering with the coastal trade and that that was why he was picketing.

He also ascertained at that time that the wages on the Nikolos were about one-fifth, one-fifth of the wages on American ships under contract to the petitioning union.

Justice Felix Frankfurter: Have you -- have told us about the Nikolos?

Have you told us --

Mr. John Paul Jennings: The Nikolos is a ship of Liberian registry Your Honor.

It is owned by the Panama Steamship Company which is a Panamanian corporation and it was by virtue of time charter and sub time charter, ultimately time chartered by Sea Tankers Incorporated which is one of the respondents in this proceeding.

If I might -- it's rather involve factual situation and I --

Justice Felix Frankfurter: The ships weren't owned by Hooker, weren't they?

Mr. John Paul Jennings: Pardon Your Honor.

Justice Felix Frankfurter: The ships weren't owned by the consignee.

Mr. John Paul Jennings: No Your Honor, they were not.

Justice Felix Frankfurter: The consignee was out of this contract?

Mr. John Paul Jennings: No the consignee hadn't made a contract so long as you have referred to it the chart which is Appendix B attached to our brief on page seven shows that the Hooker Company made a contract of affreightment with Trans Sea Carriers which --

Justice Felix Frankfurter: Page seven, did you say?

Mr. John Paul Jennings: Page seven of the appendix Your Honor.

Justice Felix Frankfurter: I beg your pardon.

Mr. John Paul Jennings: (Inaudible) it back.

Justice Felix Frankfurter: Yes.

Thank you very much.

Mr. John Paul Jennings: The Hooker Company made this contract of affreightment for carriage of salt from Mexico to the Hooker plants, with Trans Sea Carriers Incorporated.

Trans Sea Sarriers is not a party to this case.

It is a foreign corporation and a wholly on subsidiary National Boat Carriers Incorporated which is a New York corporation, an American corporation.

National Boat Ccarriers has another fully on subsidiary, Sea Tankers Incorporated which is a respondent in this case and was a plaintiff below.

Sea Tankers Incorporated got the contract of affreightment by a subcontract for its sister subsidiary Trans Sea Carries and then Sea Tankers Incorporated time chartered the Nikolos from the North Atlantic and Gulf Steamship Company which chartered from the Panama Steamship Company.

So that ultimately it ended up with Sea Tankers the holding on subsidiary of an American corporation having both the contract to carry the salt and having the Nikolos under time charter.

A time charter in case Your Honor is not familiar with, it is a rental of all of the space aboard a ship.

Justice Charles E. Whittaker: (Inaudible)

Mr. John Paul Jennings: Sea Tanker is also a foreign subsidiary, a wholly owned subsidiary of an American corporation.

Now on June the 13th of 1957 after this -- the circling of the ship had gone on for three days.

The respondents filed their complaint on the civil side, seeking an injunction and damages.

After hearing testimony, the District Court granted a temporary injunction on June 19th of 1957.

The Marine Cooks & Stewards was enjoined from picketing the Nikolos or any other vessel registered under a foreign flag, manned by an alien crew and operated by the plaintiffs or any of them.

The district judge believed that the picketing constituted unlawful interference with foreign commerce with a friendly foreign nation and that the Norris-LaGuardia Act did not forbid an injunction.

The Court, however, made the following fact findings.

In finding 16, which is on page 35 of the record, the Court said, “Plaintiffs or some of them have entered into and are seeking other contracts of affreightment covering the carriage of light cargoes from Mexican ports to United States ports in the Puget Sound area and to Hooker Electro-chemical dock in Tacoma aboard the S.S. Nikolos and or other similarly registered unmanned vessels owned, operated, or chartered by plaintiffs or some of them.

This is a finding that the plaintiffs intended to go into this business in a larger scale which naturally would result in more loss of jobs for the petitioner union and the court so found.

Justice Felix Frankfurter: What was the substantive tort which the District Court sought the remedy by injunction.

Mr. John Paul Jennings: The tort that, as I understood the District Court's finding and what the Court of Appeals held was that this was an unlawful interference with foreign commerce.

Justice Felix Frankfurter: The mere fact that they -- the mere fact of picketing.

Mr. John Paul Jennings: The mere fact of picketing Your Honor.

Justice Felix Frankfurter: I -- I -- the people who were not – who had no what you call industrial relation to the ship or its crew.

Mr. John Paul Jennings: That may have been one --

Justice Felix Frankfurter: But had -- but (Inaudible) because they, it didn't make any difference to them what crew was used, is that it?

Mr. John Paul Jennings: I think that was part of it and I believe the Court also felt that because this was a foreign registered ship it is a Liberian registered ship.

Justice Felix Frankfurter: I understand that, even if you're a Liberian or English or Dutch vessel there must be some substantive basis for interference, the substantive basis was picketing.

Mr. John Paul Jennings: Yes Your Honor.

Justice Felix Frankfurter: Against the use of non-American crew, is that it?

Mr. John Paul Jennings: Against the use of this ship.

Justice Felix Frankfurter: -- which had a foreign crew and displays the American ship --

Mr. John Paul Jennings: That's right.

Justice Felix Frankfurter: -- with an American crew.

Mr. John Paul Jennings: That's right.

Yes sir.

Justice William J. Brennan: (Inaudible)

Mr. John Paul Jennings: There was no fraud, no violence --

Justice William J. Brennan: (Inaudible)

Mr. John Paul Jennings: The protest was substantially at the picket signs, that they protested the lost of employment for their membership as a result of the use of this foreign registered ship employing --

Justice John M. Harlan: (Inaudible)

Mr. John Paul Jennings: Yes Your Honor, employing foreign seaman at substandard wages and conditions.

Justice Felix Frankfurter: Who – who in – the contract affrieghtment was between whom and who?

Mr. John Paul Jennings: The contract --

Justice Felix Frankfurter: Who, in other words, who -- who choose this Liberian carrier instead of an American carrier with an American crew subject to the --

Mr. John Paul Jennings: The Sea Tankers Incorporated which is one of the plaintiffs here had the choice and they selected the Nikolos to carry the salt.

Justice Felix Frankfurter: Is there any -- is there anything in any American legislation that prevented that choice or crowned on that choice?

Mr. John Paul Jennings: I know nothing in any legislation which says either they could or could not, nor do I know of anything that said we could or could not picket because they made a choice.

Justice Felix Frankfurter: No I just want to know -- salt of this -- clearly on which the injunction was sought, any -- any consignee in New York can select, can he under our law if he buys stuff from abroad or from --

Mr. John Paul Jennings: He would book space on whatever ship he desired to have.

Justice Felix Frankfurter: Yes.

He can book space on whatever ship comes his way.

Is that right?

Mr. John Paul Jennings: That's correct.

Here the --

Justice Felix Frankfurter: And so the injunction was in the statement of Justice Brennan that they wanted -- they were hurt, they felt injured by a carrier who was not subject to the (inaudible) Act or the American Seamen's Act, is that right?

Mr. John Paul Jennings: That's one of the problems.

The Sea Tankers Incorporated is a foreign corporation.

The ship is a foreign ship.

And many are quite --

Chief Justice Earl Warren: Would it make any difference -- would it make any difference in this case if they didn't have a question of substandard wages, and if it was just a question of a foreign ship as against an American ship?

I mean --

Mr. John Paul Jennings: I --

Chief Justice Earl Warren: Would the principle be any different?

Mr. John Paul Jennings: I don't think the principle of the application of the Norris-LaGuardia Act would be any different Your Honor but we would run into a somewhat different question as to the purpose of the picketing, there would have to be some legitimate objectives, some legitimate --

Justice Felix Frankfurter: Well they don't want them but (Inaudible).

When you say substandard, you mean just by hour, even on extended?

Mr. John Paul Jennings: Judged by the standards on American ship which were in competition.

Justice Felix Frankfurter: It's not for the ship itself as complying with the laws of the neglect, is that right?

Mr. John Paul Jennings: As far as I'm aware, the --

Justice Felix Frankfurter: That isn't in question?

Mr. John Paul Jennings: No, that's not in question.

But answering Your Honor's question more at length, it seems to me that the Norris-LaGuardia Act would not apply in any case in which -- or would apply in any case in which a foreign ship was picketed because the Norris-LaGuardia Act withdraws the injunctive remedy and says that a United States District Court may not in a labor dispute, use a conjunctive remedy.

That is not to say and I didn't wish to infer that the foreign shipowner would be without a remedy.

He would have many remedies other than the injunctive remedies such as a -- possibly a suite for damages in a diversity case or perhaps claim an injunction in a diversity case.

Justice Felix Frankfurter: But he couldn't -- couldn't --

Mr. John Paul Jennings: Not in Norris-LaGuardia Act.

I said he should --

Justice Felix Frankfurter: Yes.

It doesn't make any difference with this if this wasn't enough.

Mr. John Paul Jennings: No.

Justice Potter Stewart: Did he went into the state court?

Mr. John Paul Jennings: If he went into the state court, he could go in and claim damages and he --

Justice Potter Stewart: (Inaudible)

Mr. John Paul Jennings: I guess he could under the savings clause also claim injunctive relief.

Unknown Speaker: (Inaudible)

Mr. John Paul Jennings: Unless they had the Norris-LaGuardia Act in whatever state court he might go --

Justice Felix Frankfurter: Well but the answer -- the answer to the Chief Justice's question depends on the cons -- it's one of the issues in this case.

It depends on the construction of the Norris-LaGuardia Act, doesn't it?

Mr. John Paul Jennings: That is correct Your Honor.

Justice Felix Frankfurter: Alright.

Mr. John Paul Jennings: Now –-

Justice Charles E. Whittaker: You wouldn't argue why I take it, Mr. Jennings that the Norris-LaGuardia Act does not apply outside our country.

Mr. John Paul Jennings: Oh no, Your Honor.

This is no case in which we're playing back to the territorial application for any American law.

Justice Charles E. Whittaker: What about the rule of law that ships on our waters, foreign ships or foreign territory?

Mr. John Paul Jennings: We were not trying to apply any law to the ship itself, the law that we applied was the law limiting the jurisdiction of the United States District Court when the foreign corporation came into that court asking for a relief.

Justice Charles E. Whittaker: Yes, but --

Mr. John Paul Jennings: We did not try to interfere in anyway with the internal economy of this ship.

Justice Charles E. Whittaker: But could it be a labor dispute within the meaning of our law if it happened in foreign territory?

Mr. John Paul Jennings: Well --

Justice Charles E. Whittaker: If the controversy is one that happened in foreign territory, could it be a labor dispute within the meaning of Norris-LaGuardia Act?

Mr. John Paul Jennings: Now that the ship was operating and -- foreign commerce and we picket it outside the United States, obviously our laws were not affirmed.

Justice Charles E. Whittaker: Well I have assumed that the decks of a foreign vessel with foreign areas though in our waters?

Unknown Speaker: (Inaudible)

Mr. John Paul Jennings: I said if --

Unknown Speaker: (Inaudible)

Mr. John Paul Jennings: The problem would be --

Unknown Speaker: (Inaudible) If that I say, if we were picketing outside of this country, the reach of the jurisdiction of a federal court will not go outside of our country so you couldn't effectively enjoin what was going on outside.

Justice Felix Frankfurter: You could --

Mr. John Paul Jennings: Possibly you could if you have the people here in this country, yes.

Chief Justice Earl Warren: Mr. Jennings may I interrupt to just one more -- once more to ask you if -- it would make any difference in principle in this case if the consignee, I mean the charters were all foreign corporations instead of Americans, would that bear on it at all?

Mr. John Paul Jennings: I don't think I would make any difference in the results Your Honor.

Chief Justice Earl Warren: Yes.

Mr. John Paul Jennings: The contention is made by the -- the respondents that even an American corporation could charter a foreign ship and use it and that if the union picketed that would be not a labor dispute and therefore the Norris-LaGuardia Act would not apply.

Chief Justice Earl Warren: Well as I understood that this is an America charter, isn't it?

Mr. John Paul Jennings: Well the National Boat Carriers is an American corporation, the Sea Tankers Incorporated is wholly owned subsidiary, but Sea Tankers is a foreign corporation even though owned by an American corporation.

Justice Felix Frankfurter: And it is the charter?

Mr. John Paul Jennings: It is the charter, yes Your Honor.

Chief Justice Earl Warren: I see the --

Mr. John Paul Jennings: So that it is a foreign corporation, I believe the Liberian Corporation.

Justice Felix Frankfurter: But ultimately the question as indicated I was intimated by Justice Brennan's question, Norris-LaGuardia Act is an act limiting the jurisdiction of Federal District Court.

Mr. John Paul Jennings: That's correct Your Honor.

Justice Felix Frankfurter: And the question therefore is what it is that that Act limits that court?

As you indicated it might be the so far as (Inaudible) is concerned it is that people in front of them have enjoined from picketing in Panama or anywhere else, couldn't it?

I mean as a matter of physical power.

Mr. John Paul Jennings: Possibly so Your Honor, yes.

The issue as we see it is whether this is a case involving or going out of a labor dispute within the meaning of the Norris-LaGuardia Act.

If it is we say that act supplies the jurisdiction of the Federal Court is limited, it may not grant an injunction.

And as I pointed out earlier the intention of the respondents is that because the ship was a ship of Liberian Registry, it was not -- this was not a labor dispute within the meaning of Norris-LaGuardia Act.

We also of course have the second question of whether the decision of this court in Romero would prevent the assertion of jurisdiction on their federal question jurisdiction where the claim is that the conduct of the union was a maritime towards under federal law.

Justice Felix Frankfurter: But if it -- if it is within Norris-LaGuardia Act, that's the limitation upon every district court, isn't it?

Mr. John Paul Jennings: Yes Your Honor and if that be true then the case must be reversed.

Justice Felix Frankfurter: Then you haven't any -- you needn't worry about the other --

Mr. John Paul Jennings: We don't need to worry about --

Justice Felix Frankfurter: (Inaudible)

Mr. John Paul Jennings: No Your Honor.

Now before discussing the applicable law, I would like to comment on one matter.

Last Saturday I read a brief filed by the United States as amicus curiae in which they thought that maybe we would challenge the Liberian Registry of the Nikolos.

Now we do not challenge the Liberian Registry of the Nikolos.

We don't question the Liberian Registry of the ship and as we view it, the Liberian Registry of this ship is not controlling in the decision of the case.

So that I think -- I think we can place that here at rest.

We don't brace any question as to the Liberian Registry of the ship.

Now with respect tot the application of the Norris-LaGuardia Act --

Justice Felix Frankfurter: I've seen the Government brief.

They're just concerned with that question.

Mr. John Paul Jennings: That was the sole question Your Honor.

They had some letter from the Liberia which said “Maybe we were going to challenge it”.

Justice Felix Frankfurter: You mean they're not dealing with the other question --

Mr. John Paul Jennings: No Your Honor.

No, they're -- they're not concerned at all with the other questions.

Justice William O. Douglas: Here's an extra copy, Mr. Jennings.

Mr. John Paul Jennings: Now the -- I'm sure Your Honors are familiar with the language of Section 13 of the Norris-LaGuardia Act and I think it fits the facts that we have in this case where we see the American union protesting what amounted to unfair competition resulting in loss of jobs to the American union by the use of this foreign registered ship in this trade which had formerly been occupied by American ships and with the prospect as the Court found that other foreign ships are going to come in and more jobs are going to be lost.

Subsection (a) of Section 13 of the Norris-LaGuardia Act says that a case shall be held to involve or to grow out of a labor dispute when the case involves persons who were engaged in the same industry.

Industry here is the same in maritime industry, transportation by sea.

Same industry trade, craft, or occupation and the occupation is the same.

The foreign seaman on the Nikolos, in effect, ousted the American seamen Ira Nelson Morris who were working in this trade so that the trade, craft, or occupation is the same and the union certainly has a very direct interest in the job to its members.

It is also provided that a case shall be held to involve or grow out of a labor dispute, when it involves any conflicting or competing interest in a labor dispute of persons participating or interested therein.

And we say that this section of the Norris-LaGuardia Act also applies to our case, but for this additional reason, this is a labor dispute within the meaning of that Act because we have a direct interest in the -- what this -- foreign ship did to the jobs of the American seamen and Subsection (c) of Section 13 defines a labor dispute as including any controversy concerning terms or conditions of employment regardless of whether or not the dispute can stand on approximate relation of employer and employee.

And of course, one of the big problems here is that the foreign ship was operating with one-fifth of the wage cost of the American ship.

So that by use of the foreign corporation the Foreign Sea Tankers Incorporated was able to make a profit and to drive the American ships out of the trade.

And the --

Justice William J. Brennan: Objecting to that, the (Inaudible)

Mr. John Paul Jennings: Sure Your Honor.

Justice William J. Brennan: That is one (Inaudible)

Mr. John Paul Jennings: I think that question has not been argued Your Honor but in my view it would.

Justice William J. Brennan: (Inaudible)

Mr. John Paul Jennings: Yes Your Honor.

I would come in to the Benz case later.

Justice William J. Brennan: It was not (Inaudible)

Mr. John Paul Jennings: It might not be except that there is this very difference.

There is this great difference between this case and Benz.

In Benz the picketing union was picketing on behalf of the crew members on a foreign ship in a dispute between the foreign employer and the foreign crew.

Here they are picketing on behalf of their own members.

In Section 7 of the Taft-Hartley Act --

Justice William J. Brennan: Well let me – (Inaudible)

Mr. John Paul Jennings: It might apply to this joint.

Justice William J. Brennan: Maybe this may lead to something but this is not the protection (inaudible).

As a matter of fact, that scheme is not related to the purpose of the (inaudible)

Mr. John Paul Jennings: Yes Your Honor.

We think that -- we think the -- we are not arguing preemption problem here.

We don't claim preemption at this point.

We say that this is a question only whether this is a labor dispute and whether or not the Norris-LaGuardia Act should apply and the language of the Norris-LaGuardia Act is very clear.

It says “No court of the United States shall have jurisdiction to issue on a temporary injunction or any restraining order in a labor dispute or the language actually is in a case involving or growing out of, involving or growing out of their labor dispute to prohibit peaceful picket of the sort that the union engaged in here and I wish to emphasize again that nothing that the union did was anymore than a protest of the bringing of this foreign ship in.

They circled the Nikolos and before the Nikolos docked, the injunction was granted.

So that all we had was the circling of the Nikolos by the Willoughby, the small cabin cruiser.

There was no fraud, no violence, no nothing.

There was not even any contact between Mr. Willoughby and the crew of the Nikolos except that he spoke to the master but he spoke to no one else except --

Justice Felix Frankfurter: May one assume that this – prior to the Norris-LaGuardia Act, this could have been enjoined.

Mr. John Paul Jennings: I think prior to the Norris-LaGuardia Act on the construction of the courts gave the Clayton that would have been enjoined because the employer-employee relationship was lacking.

Justice Felix Frankfurter: Well doesn't the foreign commerce aspect enter into what would have been enjoinable prior to the Norris-LaGuardia Act?

Mr. John Paul Jennings: Possibly so.

Justice Felix Frankfurter: I think one has to decide possibly come to Norris-LaGuardia as I do.

Mr. John Paul Jennings: That would be a preliminary question.

That is even without the Norris-LaGuardia, would this conduct be permissible and could it be enjoined even aside from the prohibitions of Norris-LaGuardia.

I think that their interference with foreign commerce has never been considered to be a tort as such.

Justice William J. Brennan: The observation (Inaudible)

Mr. John Paul Jennings: Pardon me Your Honor.

Justice William J. Brennan: Well does that mean (Inaudible)

Mr. John Paul Jennings: Yes Your Honor.

Yes I've come to the Romero.

Justice William J. Brennan: Other we (Inaudible)

Mr. John Paul Jennings: Under Romero theory, there could not have been -- a case could not have been entertained at all.

Justice Felix Frankfurter: Does Romero means that you couldn't have entertain it on any side of the Court?

Mr. John Paul Jennings: Well you could entertain it on the admiralty side and in that event historically, I believe, has not granted an injunction.

Justice Felix Frankfurter: You got – that's the problem there.

Mr. John Paul Jennings: Yes Your Honor.

Justice Felix Frankfurter: Well you're full of problems.

Justice William O. Douglas: Well if you got into admiralty you'd get out pretty fast.

I mean you have no -- you have no remedy in admiralty.

That's what you --

Mr. John Paul Jennings: In admiralty the remedy would be the regular admiralty remedy of damages.

Justice William O. Douglas: But no -- no remedy for injunction?

Mr. John Paul Jennings: No injunctive remedy.

No, Your Honor.

Mr. -- I should say the respondents counsel for the first time argues in this Court that admiralty might have granted an injunction and therefore, this might be sustained in that ground and I will mention that problem briefly.

Now this Court as, Your Honors are aware has not given the Norris-LaGuardia Act a narrow or restrictive interpretation.

The narrow restrictive interpretation of the Clayton Act was removed by the Norris-LaGuardia Act in disputes of the characters that we have here where the picketing protests what the union considers to be unfair competition has been held to involve a labor dispute within the meaning of a Norris-LaGuardia Act.

The New Negro Alliance case and most closely in point, the Milk Wagon Drivers' Union case in which this Court considered the picketing by a union which picketed retail outlets of dairies which used the so-called vendor system of milk distribution.

That is the dairies instead of employing their own employees to deliver the milk used independent contractors.

And the union considered that the use of the independent contractors depressed wages and conditions and prevented union employees from getting jobs and restricted the opportunities, the job opportunities of union members.

This Court refers to the Court of Appeals which had held that no labor dispute existed there and reversed the order granting the injunction holding that reading the Norris-LaGuardia Act as Congress enacted it clearly this type of conduct constitutes a labor dispute.

So that what we have here is a case which we say falls within the express language of Norris-LaGuardia and we believe that the respondents must bear the burden of establishing that in some fashion, Norris-LaGuardia Act should not apply solely because a foreign ship was picketed and I think that this is the posture of the case here.

Now --

Justice Felix Frankfurter: Of course Railway Labor Act cases in this Court showed, things that situation maybe within the kind of appropriate analysis that you made of the language and yet not be limited by it.

I'm asking, I know you are (inaudible).

Mr. John Paul Jennings: Yes sir.

That's correct, Your Honor.

Now in our case the -- what the petitioner was doing was peacefully picketing this ship in protest against the fact that this ship was in a trade formerly occupied by an American ship and the union people are out of work.

So --

Justice Charles E. Whittaker: I wonder if as matter of law and American union could have a labor dispute with the employees with the foreign government or the foreign ship.

What do you think of that?

Mr. John Paul Jennings: I would say -- you mean whether we could have had a dispute with the people working on the ship?

Justice Charles E. Whittaker: Who had signed on in Liberia?

Mr. John Paul Jennings: Our dispute was with the parties to this case, the owner of the vessel and the charter Sea Tankers which had brought the vessel and the employees were -- were just on the vessel and they were the instruments, if you wish, but they -- they had no dispute with the employees on the ship.

Justice Charles E. Whittaker: Oh but you -- did you have a dispute with anybody or could you have a “labor dispute” within the meaning of the Norris-LaGuardia Act with all of these of the foreign ships in our waters.

Mr. John Paul Jennings: That I think is what the respondents argue.

They say not -- that you may not have a labor dispute with a foreigner.

They recognize that a foreigner, when he becomes a litigant in an American court, he is in no different position than in America.

But they say that because these disputes involved a foreign registered vessel, it is not a labor dispute.

I find nothing in the Norris-LaGuardia Act nor in any decisions of this Court which would lead to such a conclusion.

That is their contention.

Justice Felix Frankfurter: I'm not saying that this case should have to be the problem, but when -- when we're in the realm of foreign relations when I think -- think about them and the -- the country of -- of the national of the charterer might the law of the country of the national -- the charterer might require him to charter, to employ merely citizens of the country.

In fact as we -- we strict the coast by straight, wouldn't there be, they might say, I mean, I know what country this charterer was a citizen.

Mr. John Paul Jennings: It was wholly owned subsidiary of the American corporation.

It is a foreign corporation Liberian.

Justice Felix Frankfurter: That foreign corporation might be required by the law of the country.

They have only seamen of its enactment and then you couldn't say well we'll have a controversy between the charter and the American -- the American union.

You could possibly -- you could -- you could be ready for it.

It would be a little odd to say that the unions can have a labeled controversy with the law of the country of the charter forbids.

Mr. John Paul Jennings: I don't know of anything in the record which would indicate that.

Justice Felix Frankfurter: No, no, no but you've indicted all these now, can't you, because a lot of countries have a lot of (Inaudible) legislations that we have.

That's true isn't it?

Mr. John Paul Jennings: That is true.

So far as the Sea Tankers is concerned the argument, as I understand you, would be that if as a Liberian corporation might be required to employ Liberians.

Justice Felix Frankfurter: The Liberian law did what it did.

I'm not saying it is good but --

Mr. John Paul Jennings: Well actually --

Justice Felix Frankfurter: There are a lot of restrictive -- they're dealt with good deal of restrictive legislation by various countries to require internationals to deal with the home -- employ the home market as it did.

Mr. John Paul Jennings: Well --

Justice Felix Frankfurter: I'm not saying that it is not true.

Mr. John Paul Jennings: It isn't true, Your Honor, because we have some Liberian ships under contract.

Justice Felix Frankfurter: Well I'm not --

Justice William O. Douglas: Liberians on special occasion -- treaty with Liberia which bears on this problem at all.

Mr. John Paul Jennings: There isn't any treaty that says anything about the picket situation we have here.

There is a treaty part of it which is quoted in the respondents' brief and other sections in our brief treaty of commerce, friendship and so forth which gives Liberian vessels the same rights in our courts that American vessels have in Liberian ports.

And they have the same right to go to Court of Justice in this country that Americans have to go to court in this country.

They don't get any greater right, they have the same.

They have the same right as American ships and they have the same rights in our American courts, but no difference.

Justice Felix Frankfurter: With no typical relation.

Mr. John Paul Jennings: Yes Your Honor.

No great.

They aren't given any -- any more rights.

Justice Felix Frankfurter: Liberian ships coming here are the same rights that our ships have been going to as against this.

Mr. John Paul Jennings: Well that's what the treaty says.

There are reciprocal obligations.

In our Court say, they get the same treatment as our ships and it says in their ports that our ships get the same treatment as theirs.

Now what we have here, Your Honor, is the case in which an American union is enjoined for exercising its right to protest peacefully what was unfair competition to its membership and it should be recalled that in this case, although the respondents denied the application of the Norris-LaGuardia Act to this dispute and that is a federal law, their entire case before this Court is predicated upon the theory that what we did, the peaceful picketing, was a maritime tort under federal law and they predicate their entire claim of jurisdiction upon the ground that this is federal question of jurisdiction.

That this is a case under the laws of the United States that they are in a difficult logical position in maintaining that they have so far as jurisdiction is concerned and so far as the establishment of a maritime tort is concerned, reliance upon American law, upon federal law, but denied the application of the Norris-LaGuardia Act.

There are a few cases in which this Court has held of what normally would be considered to be a labor dispute, it is not a labor dispute and Mr. Justice Frankfurter referred to some of those cases.

In the United Mine Workers' case which so far as I have been able to find is the only case in which a statute, the Norris-LaGuardia Act was not applied solely on the basis of the parties involved.

The Court said that a dispute between the United States and its own employees who became the employees of the United States when the Government took over the mines was not a labor dispute within the meaning of the Norris-LaGuardia Act.

The reasons which have impelled this Court to hold that the Norris-LaGuardia Act did not apply to the United States of sovereign certainly do not apply here.

There is another line of cases in which the Norris-LaGuardia Act has not been applied and in those cases, what this Court said was that if the Norris-LaGuardia Act was the only one of several statutes which governed and the mandate of the other statute requires certain conduct, the Norris-LaGuardia Act will not stand in the way of an injunction enforcing the mandate of the other statute.

For the example the Railway Labor Act and the National Labor Relations Act were interpreted to forbid discrimination and this Court enforcing that policy granted -- approved an injunction which enforced the mandate of those statutes.

This Court also in the Textile Workers' case enforced the mandate of the Taft-Hartley Act which required enforcement of collective bargaining contracts and suits to enforce and approved an order directing what amounted to compulsory arbitration under the provisions of an agreement in which the Union agreed to arbitrate the grievance.

Justice Felix Frankfurter: The Taft-Hartley Act did not -- the Taft-Hartley Act specifically exempt -- limits or provides as a non applicability of the Norris-LaGuardia Act over yet?

Does it say --

Mr. John Paul Jennings: Yet it says that Norris-LaGuardia is modified only to the extent of permitting the National Labor Relations Board itself to go into a federal court and secure an injunction.

Justice Felix Frankfurter: But they're -- are they (inaudible) in terms?

Mr. John Paul Jennings: Yes Your Honor.

Justice William J. Brennan: In the 1959 Amendment carried that forward --

Mr. John Paul Jennings: Yes Your Honor.

Justice William J. Brennan: -- to be more specifically.

Mr. John Paul Jennings: Yes Your Honor.

In any case involving the claim of violation of the Taft-Hartley Act, only the National Labor Relations Board can secure an injunction.

Justice Felix Frankfurter: I think that's the law who didn't always concern.

Mr. John Paul Jennings: Now as I say the problem here is to interpret the intention of Congress in this Court in the cases that I have referred to has said where there is a congressional mandate which looks in a particular direction; this Court will enforce that mandate despite the prohibitions of the Norris-LaGuardia Act.

I have searched in vain for any mandate which says that a foreign registered vessel is to be treated any differently in the case under the Norris-LaGuardia Act in American vessel or that a foreign registered vessel is to be given any rights which an American vessel doesn't have.

That the -- if there's any test at all that the nationality of the registration of the vessel has anything to do with the application of the Norris-LaGuardia Act.

Justice William J. Brennan: In other words, they sought an American court remedy in the State --

Mr. John Paul Jennings: Yes Your Honor.

Justice William J. Brennan: That's your point.

And unless there's something which gives them a status different from an American properly speaking the same relief in American court to the same extent the Norris-LaGuardia Act should apply, that's your point.

Mr. John Paul Jennings: That is correct.

Precisely correct, Your Honor.

Now the Court of Appeals was in a very -- pardon me, Your Honor.

Justice Felix Frankfurter: A like argument was made in Norris -- in the Norris situation.

Mr. John Paul Jennings: I think not Your Honor.

Justice Felix Frankfurter: Well if that -- that we're not enforcing an extraterritorial, that was a suit brought in America to enforce right enforced on American soil.

Mr. John Paul Jennings: But the rights there were the rights of a foreign seaman on a foreign ship.

Justice William J. Brennan: Yes.

Justice Felix Frankfurter: I'm not saying that this is that case.

All I'm saying is that that decision could have gone the other way that are doing anything except enforcing things right here in America on American soil.

Mr. John Paul Jennings: That's correct but again the Jones Act is a -- an act creating substantive rights.

The Norris-LaGuardia Act is a limitation on the jurisdiction of the courts.

Justice William J. Brennan: Well and there was a history in the Jones Act which supported the conclusion that it didn't cover foreign seaman anyway, wasn't it?

Mr. John Paul Jennings: That's correct and it certainly as the Court pointed out in the (Inaudible) case would have been improper.

Justice Felix Frankfurter: But it's the large legal basis that the consideration that we impose the considerations of our relation with the foreign countries.

Mr. John Paul Jennings: Well, that's one thing but in the -- in that case --

Justice Felix Frankfurter: I'm not saying (inaudible) these are the relevant factors that one has to consider and that's one of them.

Mr. John Paul Jennings: That's correct, Your Honor but may I point out that in that case, if the seaman had been able to get a remedy in this Court for that tort, he might have gotten the difference or a greater remedy than it could have been -- he sued in the courts of his own nation, and here we are not troubled with that point at all because --

Justice Felix Frankfurter: One might say to you one is troubled by the fact, you're trying to prevent (inaudible) national for to have friendlier relation with this country under an international law have a right to do come in and do business, you're trying to prevent them from coming here.

Justice William J. Brennan: You're trying to prevent their resort to our courts on any different terms than American corporations do resort to our courts --

Mr. John Paul Jennings: Well I was going to state, Your Honor, that that is precisely correct.

We don't say that we might not be responsible in tort damages if what we did was wrong.

Well at least it was not before the Court here.

The question is whether the Norris-LaGuardia Act forbad in injunction.

Justice Felix Frankfurter: I understand that but all I'm saying is that in construing that, one has to consider the implications and one of them is that this is the effective way of preventing vessel of making the (Inaudible) of unfriendly terms from coming here curtailing their rights, limiting their rights, otherwise, you wouldn't want the injunction.

That's why you want the injunction.

Mr. John Paul Jennings: I suppose that's true, Your Honor, but we don't know that an American shipowner who might be picketed in the foreign court in Liberian court will get an injunction, maybe he could get damages but I don't think the injunctive remedy in labor disputes is universally applied.

Justice William J. Brennan: Well say, Mr. Jennings, if this had been a ship of American registration and you had precisely this dispute, would you make any different argument than you are now?

Mr. John Paul Jennings: So far as Labor dispute is concerned, no Your Honor.

Justice William J. Brennan: Oh, and as to the jurisdiction of District Courts.

Mr. John Paul Jennings: As to the jurisdiction, it would be the same.

Justice William J. Brennan: It would make this quite a bit.

Mr. John Paul Jennings: Our argument would be the same because we said the burden is on the other side to show that because a foreign registered ship is involved you apply a different rule.

Justice Felix Frankfurter: But the same thing with reference to different situations isn't the same thing.

I haven't any view against it.

Mr. John Paul Jennings: I understand Your Honor.

Justice Felix Frankfurter: All I am saying is one would see problems with practical problems in order to solve them adequately and it does make a difference that the result of this is be given effective remedy against nationals of friendly nation who have perfect rights to be -- have a perfect right to send ships that you were taking measure which is regarded as a tort and the question is what remedy should we availed off which to recognize there might be some other remedy, what remedy maybe availed of in order to remedy that cause --

Mr. John Paul Jennings: That's correct.

Justice Felix Frankfurter: In fact that an American shipowner can get a remedy and the injunction doesn't mean there's a (Inaudible) Norris-LaGuardia Act must read seems to include this.

Mr. John Paul Jennings: But I would say that the American shipowner obviously could not obtain an injunction in this case so what it amounts to is a claim that the American competitor of this foreign ship --

Justice Felix Frankfurter: Well it could not --

Mr. John Paul Jennings: -- could not obtain an injunction.

Justice Felix Frankfurter: The restriction doesn't follow that the restrictions upon American shipowner from that that it follows that the same restriction applies to a foreign shipowner, it doesn't follow at all?

Mr. John Paul Jennings: No.

We think so far as the Norris-LaGuardia Act is concerned, so far as --

Justice Felix Frankfurter: Well I'm not saying that's right.

All I'm saying is the fact that an American shipowner couldn't get relief by injunction, doesn't follow few degrees that a foreign shipowner fits because other factors didn't.

Mr. John Paul Jennings: It could very well Your Honor except that I find no — no way that you can't find a way out of the Norris-LaGuardia problem, it seems to be explicit.

It makes no exception --

Justice Hugo L. Black: Well (Inaudible)

Mr. John Paul Jennings: Pardon me Your Honor.

Justice Felix Frankfurter: Three judges below found a way out.

There are --

Mr. John Paul Jennings: They did it upon the basis, Your Honor.

Justice Felix Frankfurter: You have to go there, you will not have from bigger basis.

Mr. John Paul Jennings: They did it solely upon the ground of the Benz case which I would like to discuss briefly and this is the distinction between this case.

Justice Felix Frankfurter: I'm not saying they're right.

All I'm saying is that there is no logical compulsion in the words of the Norris-LaGuardia Act that it must be applied to the carrier of friendly foreign nation.

Mr. John Paul Jennings: In the Benz case, this Court held that a damage action for what was a tort under the law of Oregon was not preempted by the remedy presumably provided by the Taft-Hartley Act.

The case there was a damage action, an action for damages.

Here we have an action for an injunction.

The claim there was a diversity case based on state law and here we have a claim based exclusively on federal law with jurisdiction indicated on the laws of the United States.

The dispute in the Benz case was between the foreign crew and the foreign owners.

It was internal to the ship.

Here the dispute is between an American union and two foreign corporations which seek to bring a foreign ship into this trade and to the union members of their jobs.

Justice Felix Frankfurter: The dispute really was, Mr. Jennings; the dispute really was between the desire of the American union not to have a complication from seamen who have lower standards than our own.

Mr. John Paul Jennings: We felt that the -- the foreign shipowner could bring his vessel in, in this trade which was historically American and that the trade would be lost entirely to American employers because they paid five times as much.

Justice Felix Frankfurter: That's what is all about.

Mr. John Paul Jennings: And the -- the business is gone and we think that we have the right to make that protest.

Now, may I point out also that in our case the Union picketed on behalf of its own members and in the Benz case, as this Court pointed out in its decision, the union picketed on behalf of the foreign crewmen in a dispute of the foreign crewmen with the foreign employer.

That dispute was internal to the economy of the vessel, our dispute is not.

That dispute, this Court said involved interference with the internal economy of the vessel and the Court felt that if the representation procedures of the Taft-Hartley Act and the other procedures of the Taft-Hartley Act were applied to the internal economy of the foreign vessel that that would be, as I believe the Court said, running interference in a very delicate field of international relations, but we do not have any problem of the internal economy of this vessel.

The dispute did not concern relations between the foreign crew and the foreign employers, the dispute was external.

Justice Charles E. Whittaker: Don't you have – don't you have a dispute over internal conditions on this Liberian ship?

Weren't you complaining about --

Mr. John Paul Jennings: We were complaining --

Justice Charles E. Whittaker: -- these conditions, leaving conditions on it and so forth?

Mr. John Paul Jennings: Not the leaving conditions Your Honor.

The complaint was that the conditions which existed on this ship were substandard that this was one-fifth of the wages paid on American ships which in effect was unfair competition.

That the — as I told you the picket signs that we broadcast, the use of foreign vessels with substandard wages and substandard conditions —-

Justice Charles E. Whittaker: (Inaudible)

Mr. John Paul Jennings: No Your Honor.

That was involved in the Benz case but it was not involved here.

That was solely that it was one of the problems in the Benz case not here.

Now in the Benz case, the Court held that the Taft-Hartley procedures did not apply to resolve the dispute which was internal to the vessel.

In our case we say that the situation is entirely different.

We're talking about a statute which limits the jurisdiction of a United States District Court.

We, therefore, urge that the Norris-LaGuardia Act limited the jurisdiction of the Court and prevented granting of the injunctions.

Now on the question of jurisdiction, we think that the Romero case is precisely in point.

Here as there the plaintiff wants a remedy which he doesn't think he can get in admiralty.

In the Romero case, he wanted to sue on a civil side claiming federal question jurisdiction and to get a jury trial.

Mr. John Paul Jennings: We'll recess now, Mr. Jennings.

Print this transcript Transcript: 

Argument of John D. Mosser

Chief Justice Earl Warren: -- Marine Cooks & Stewards, AFL, et al., Petitioner, versus Panama Steamship Company, Ltd., et al.

Mr. Mosser, you may proceed with the argument.

Mr. John D. Mosser: Thank you, Mr. Chief Justice.

May it please the Court.

The position of the respondents here is that there is no labor dispute within the meaning of the Norris-LaGuardia Act so as to deprive the District Court of jurisdiction to issue the interlocutory injunction which it did issue.

I would like to make clear at the outset that the basis upon which we make that contention is that the dispute was over terms and conditions of employment, a board of foreign flag vessel, only transiently in a United States court.

It is not a claim of special position for a foreign shipowner and some of the colloquy particularly between counsel and Mr. Justice Brennan yesterday, seemed to me to be turning on the question of a foreign shipowner in an American court.

I'd like to point out the difference between the owner of a foreign ship and a foreign shipowner.

One looks to the corporate owner, the other looks to the ship.

It might well be that you would have an American owner of a foreign flag vessel and we believe that such an American owner in court would be entitled to the same relief here as these respondents are.

It is not the position as a foreign shipowner, but as the owner of a foreign ship which centers around the question of whether there is a labor dispute because of the terms and conditions of employment aboard that ship.

Now, there is some question as -- in my mind as to just what the petitioners are claiming the labor dispute here is.

In response to a question for Mr. Justice Whittaker yesterday, counsel stated that there was no dispute with the crew members.

In the reply brief at page 5, the statement is made in the first full sentence at the top of the page after the quotation.

The petitioners in picketing were not seeking to change wages, hours or working conditions on the S. S. Nikolos.

In response to a question from the Chief Justice yesterday, counsel said that it would make no difference so far as the Norris-LaGuardia Act was concerned, if the wages here were not far below the American standar, which their members have aboard competing American flagships.

In fact, the position that counsel took yesterday was that they were here seeking to shut this foreign flag vessel out of this trade.

Now, as counsel admitted in --

Justice Felix Frankfurter: But if this weren't -- if -- let's forget, for the moment, the foreign relation aspect of the problem, would have -- would picketing by union in order to extend a membership by shutting out -- shutting out in the market on the -- on the Court, let's forget the foreign aspect, ships that carry foreigners and therefore not members of the American union, would that not be a labor dispute?

Mr. John D. Mosser: I believe not, Mr. Justice Frankfurter.

I think that if they are seeking to represent the crew or to bargain with the owner over wages, hours or working conditions.

Justice Felix Frankfurter: Or to enlarge -- or to enlarge their clientele by having ships that -- with crews that are eligible and potentially would become members of their -- of their union.

Mr. John D. Mosser: If --

Justice Felix Frankfurter: How does that different from the -- the labor dispute which seeks to enlarge the membership of the union?

Mr. John D. Mosser: Well, if they were seeking to enlarge the membership of the union, if they were seeking to become the agent for these people and to have them join the union --

Justice Felix Frankfurter: Not for these people because they can't become members, they can't practically, I don't know about legally, practically, become bargaining representatives of these people for their foreigners.

Mr. John D. Mosser: Then --

Justice Felix Frankfurter: They want to -- if -- if foreign carriers with foreign crews can't come into the port of Seattle or whatever it is, then the argument is that their hope is that business would be taken over by American-run ships.

Mr. John D. Mosser: I -- I don't think it would be a labor dispute, Your Honor, anymore than, let me put this example.

The railroads have taken a great deal of business away.

In fact, the intercoastal American trade has practically dried up.

Now, suppose this union were to go out and picket the railroad with the intent of stopping the railroad from loading all intercoastal -- all transcontinental cargo, in order that American ships would have more business so that their members would have more jobs, I don't think that would be a labor dispute.

Justice Felix Frankfurter: Why don't you read the specific definition of what labor dispute is in the Norris-LaGuardia Act?

That's what the case must turn on

Mr. John D. Mosser: I'll be glad to do that.

And, I think, Your Honor is correct that it is the statute that we are here construing that the problem is to determine just what that definition is.

Now, the term, “labor dispute,” this -- it's found in 29 U.S.C 113 (c) and at page 40 of our brief, we have quoted the definition from the Labor Management Relations Act of 1947.

The two definitions are identical except for one small word which I will point out in --

Justice Felix Frankfurter: I'm just curious to know why you did that, why you didn't quote from the Norris-LaGuardia Act, pure curiosity -- academic curiosity.

Mr. John D. Mosser: I was comparing this case at that point, Your Honor, to the Benz decision of this Court which was rendered three years ago and in which the Court held the Taft-Hartley Act was not enacted with any eye to foreign labor relations or disputes over employment conditions aboard a foreign flag vessel.

Justice Felix Frankfurter: I can understand your quoting both.

I can't quite understand your partiality to one.

Mr. John D. Mosser: Barely to say if -- that the argument I make in my brief, Your Honor, is that the sections are identical except for one word and I quote the different word.

The definition in the Norris-LaGuardia Act is, "The term, labor dispute, includes any controversy concerning terms or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment regardless of whether the dispute stand in approximate relation of employer and employee."

Now, the only difference between the two acts is that the Labor Management Relations Act, instead of saying terms or conditions of employment, says terms tenure or conditions of employment.

The one word tenure is the difference.

Justice Felix Frankfurter: Perhaps the proximate relation clause means that it doesn't have to be a quarrel between a particular employer and his particular employee.

Mr. John D. Mosser: That's correct.

But I think the definition does point that it must be a dispute over the terms or conditions of employment or over the right to represent persons in seeking to arrange terms or conditions of employment.

And if as the respondent say in their reply brief, they are concerned and don't want to change wages, hours or working conditions aboard this vessel and don't want to represent this crew, it's hard for me to see where there would be any labor dispute even if this were an American flag vessel.

Now, I hasten to -- to point out that I don't think the records supports the interpretation of this dispute which counsel has put on in it the last minute in this reply brief.

It's not the position they took anywhere up until that time.

The position which they took in their opening brief in this Court is it stated at the top of page 13 of that brief and it states the evidence shows that the controversy between the parties concerns terms and conditions of employment.

The fact is that when this vessel arrived in court Mr. Willoughby, the petitioners Seattle agent, went aboard the vessel.

And at page 61 of the record, he testified that he told the captain, "Well, I told him by virtue of the policy of my union that I was interested in the wages, hours and conditions existing aboard the ship."

At page 29 of the record, in his affidavit, he's outlined his efforts to find somebody with whom he could negotiate and states that affiant has not been able to find or talk with any person or persons in this area or been referred to any person who could be contacted by long distance who would admit to having authority to negotiate and to adjust the difference with affiant's organization.

In the Court of Appeals, in both their briefs, they made quite clear that what they wanted to do was change the wages, hours and working conditions aboard the vessel.

Justice Felix Frankfurter: Well, if that's so, then what becomes of your oral argument (Voice Overlap)

Mr. John D. Mosser: Well, then, I think, we come to the real legal question in this case which is whether the term, labor dispute, was intended by Congress to encompass a dispute over terms and conditions of employment aboard a foreign flag vessel.

And I think I would like to go into that question now.

Justice Felix Frankfurter: Well then, do you -- see if I understand, do you now say that they did want to change that they did bring themselves within the terms of he law -- the labor dispute of the Norris-LaGuardia Act, on that page of the problem?

Suspending for the moment, whether a labor dispute with reference to a foreign vessel was -- was covered?

Mr. John D. Mosser: I think --

Justice Felix Frankfurter: May I ask you that the subject matter of the controversy, do you agree that this was about (Voice Overlap) --

Mr. John D. Mosser: I think, Your Honor, that --

Justice Felix Frankfurter: Pardon me?

Mr. John D. Mosser: Yes.

If their intention was to negotiate concerning wages, hours, and working conditions aboard this vessel, then unless the foreign aspect takes it out from the Norris-LaGuardia Act as we contend, I think that it would be within the scope of that Act.

Justice Felix Frankfurter: You say if.

What -- what is your -- what is the position --

Mr. John D. Mosser: The position --

Justice Felix Frankfurter: -- or what -- how are we to read the record in your view?

Mr. John D. Mosser: I think that the record should be read on that basis that they were seeking to change wages, hours and working conditions, if -- if not, I don't see how there would be any labor dispute here at all.

But I think that the records supports them that far.

That they were seeking to change wages, hours and working conditions to bring them up to the American standard so that that competitive difference would be eliminated between the foreign --

Justice Felix Frankfurter: So that goes -- the burden you -- you have to assume, that your position is that although this is within the qualifications of what is or what is a labor dispute to argue in this case has not been imply be a foreign ship is withdrawn from the scope of the Act.

Mr. John D. Mosser: That's our position, Your Honor.

Justice Felix Frankfurter: All right.

Justice Charles E. Whittaker: If it's true, then this isn't a dispute (Inaudible) such as to create dissatisfaction on their people.

If you can be subject to their (Inaudible)

Mr. John D. Mosser: I -- I think exactly that that is the problem which has led this Court in the past to say that the delicate international relations and the possibilities of retaliation in these situations, make this a matter for the Executive and the Congress to negotiate and to specifically spell out, if they want our laws to apply to foreign ships.

Because if we can insist that a ship and this ship is a tramp vessel, a great claim here that it entered this trade.

Well, it had signed articles in Cardiff, Wales two years before.

It had been all over the world.

It had never been in this trade before .

It came in this one time to deliver this cargo.

The testimony was that it wasn't coming back to the northwest.

It was going to Europe.

Now, if a vessel that comes in like that for one call, serves as a focus where we can come aboard and say, "You negotiate for this ship American standards and conditions, then every ship -- that every port that it touches, can be subject to the same renegotiation according to the local laws and customs.

And it is that which has led the nations through comity to recognize the law of the flag.

Normally in a contract situation, you'll to the place of performance or the place where the contracts executed, but this Court has said that those things for seamen are -- are pretty much where a matter of happenstance.

And so the law of the flag governs.

The articles are governed by the law of the flag, the relations aboard the ship are governed by the law of the flag and only in rare instances such as where the tranquility of a port is disturbed or where Congress specifically spells out as it has in a few instances, that our laws are to apply.

Do American laws apply to a foreign ship within our harbors? Now, the Romero case which is important here on another point to but --

Chief Justice Earl Warren: Before we get to that, I -- I wonder if conceding everything that you say, Mr. Mosser, if -- if this country doesn't have the right to -- to say, well you can't have an injunction in these circumstances.

Perhaps you could have damages or something else to compensate you for any loss, it -- it might be occasion, but the policy of our nation is that -- that in this -- in these circumstances, you can't have an injunction anymore than one of our own sentences could get an injunction.

Mr. John D. Mosser: I think that the Congress could -- could certainly say that, Your Honor.

The question here is whether in passing the Norris-LaGuardia Act and defining labor dispute in it, they intended that to encompass a labor dispute on a foreign flag vessel.

Chief Justice Earl Warren: Yes.

Well I -- I understand that.

But it seemed to me that in your argument just a moment ago about the foreign vessel, you were taking the position that if -- if we interfered with them here, we would be denying them the comity and the -- and the rights under their -- their treaty that they were entitled to, namely, to -- to protection while they're in our country.

Now, it -- it may be that our -- our Congress wants to limit not on their own citizens, but everybody to a particular kind of action.

And the only question is whether they have done it here under the -- under the Norris-LaGuardia Act.

But as I understood you, a moment ago, in response to Justice Frankfurter, you -- you said that you believe that they -- that they were making a claim in this case, that is the union, which -- which would've prevented the granting of an injunction in the event this was a -- American citizen.

Mr. John D. Mosser: No, not an American citizen, an American ship.

Chief Justice Earl Warren: An American ship.

Yes.

Yes, I'm -- I'm sure that you said that.

Mr. John D. Mosser: I -- I think that's correct, Your Honor.

If this was an American flag vessel, there would be a labor dispute here, leaving aside a question which I don't think we need to go into as to whether they can try to change terms and conditions of employment while articles of shipping are in effect or whether they have to wait until the termination of particular articles.

But I think that generally, there is no right question, but what a -- an American union has a right at some point to go into the question of wages, hours and working conditions aboard on American flag vessel.

But the question here is whether Congress intended that an American union be free from the prohibition of an injunction in a dispute over terms and conditions of employment aboard a foreign flag vessel.

And, I think, it may go farther than mere injunctive relief, because the Court has indicated that the Norris-LaGuardia Act serves as a shield not only against injunctive relief, but to a substantive effect.

In the Hutcheson case, they said, there could be no criminal prosecution.

And I think that by amendment of the Clayton Act as -- as counsel argues and we could concede, if the Norris-LaGuardia Act applies, then their conduct is probably protected from being a violation of any law of the United States in this situation.

Justice Felix Frankfurter: You say -- you referred two or three times, certainly twice, to the fact that whenever Congress wanted to exercise its undoubted power to touch, to deal with a foreign flag vessel, it said so, explicitly, have you collected those -- that legislation?

Mr. John D. Mosser: That legislation was collected by the courts, Your Honor, in the Benz decision.

It's largely a series of enactments relating to the advances of pay to seaman and the right to make a draw by a seaman in an American court.

And the Congress has specifically said that a seaman aboard a foreign flag vessel has the right to make a demand for pay in an American court.

The whole series of -- of acts and the controversies that grew out of them are outlined in --

Justice Felix Frankfurter: How far back do they go, does that -- type of legislation?

Mr. John D. Mosser: Most of it occurred, Your Honor, in the early part of this century, from about 1910 through the early 1920s, I believe.

I don't believe there has been any specific act of Congress applying our laws to foreign ships, since that time.

The -- Congress did in 1938 passed an act which is no longer in effect governing labor relations aboard merchant vessels, specifically.

That's referred to in our brief.

It was --

Justice Felix Frankfurter: Am I wrong in -- in thinking and in having a notion that admiralty, wholly apart from legislation, protected seaman in certain ways --

Mr. John D. Mosser: Oh, yes.

Justice Felix Frankfurter: -- that matter the admiralty law?

Mr. John D. Mosser: Oh, yes, Your Honor.

Justice Felix Frankfurter: As to that body of -- if I may use a contradiction in terms, common law admiralty law, was there any -- was there any litigation as to the applicability of admiralty to foreign ships or I suppose answer my question since those -- since those admiralty law -- lawmakers, judge-made rules were based on the generality of admiralty law, they probably would be a world-wide application, is that right?

Mr. John D. Mosser: Most of them are and, I believe, our courts have shown a tendency to apply the general admiralty law to foreign seaman, except in some cases, they have said that the jurisdiction might not be mandatory.

It's a discretionary jurisdiction sometime in our court whether to entertain suits between foreigners over those questions.

And sometimes, they have refused where they felt that a better remedy or a better forum for the trial was in --

Justice Felix Frankfurter: Even country of the flag.

Mr. John D. Mosser: -- in the country of the flag, or in the country where the parties, themselves, resided.

Justice Hugo L. Black: May I ask you who own the stock in this company that owned the ship?

Mr. John D. Mosser: It's not revealed in the record, Your Honor.

The Panama Steamship Company was the owner of the vessel and, of course, the owner was the one who hired the crew.

It's a Liberian corporation.

The only thing the record shows is some knowledge that the captain had of -- he -- he referred to the owners as Greeks in London, but when pinned down, he didn't know whether they owned the stock --

Justice Hugo L. Black: What --

Mr. John D. Mosser: -- or were managing agents.

Justice Hugo L. Black: Then what was this diagram that appears in the end one of the briefs?

Mr. John D. Mosser: Well, it's -- it's something that counsel devised and I don't think it inaccurately portrays the relations between the parties.

Justice Hugo L. Black: Was there a company that had a company in New York that owns the ships here?

Mr. John D. Mosser: No.

It owned --

Justice Hugo L. Black: Owned a corporation?

Mr. John D. Mosser: It owned the stock in the charterer of the vessel.

Now, the time charterer of the vessel has nothing to do with labor relations aboard the vessel.

It wasn't a bearable charterer.

It was a time charterer and all they did was hire the ship to carry a cargo of -- from one -- well, they hired it for a period of time and during that time, used it to carry this cargo.

But the labor relations were set between the owner and the crew and the time charterer had nothing to do with those, it's -- it's no different than if I book passage for a 30-day cruise on the Queen Mary, I'm chartering some space on that vessel for a period of time, but I don't have anything to do with the labor relations aboard the vessel.

Justice Hugo L. Black: Suppose they had picketed that company in New York and had the same information on their picket, would the Norris-LaGuardia Act have barred the issuance of an injunction?

Mr. John D. Mosser: I think so, if the intent was as it was here.

In my opinion, to change terms and conditions of employment aboard a foreign flag vessel, which is only transiently in our ports.

Justice Hugo L. Black: Do you think even if they have picketed the companies that owned the corporation that owned the ship, that -- that they could've done the -- an injunction despite the Norris-LaGuardia Act?

Mr. John D. Mosser: I think --

Justice Hugo L. Black: Do I understand you say that.

Mr. John D. Mosser: I think so, Your Honor, because, I think, the question is whether they have a right to dispute over terms and conditions of employment on a foreign flag vessel.

Justice Hugo L. Black: Well, I thought, they were frequently disputes between officers and stockholders of companies and the man sometimes by their picketing, because of their interest in them.

Mr. John D. Mosser: Well, if the employment is domestic to this country, I think possibly they have --

Justice Hugo L. Black: Suppose -- suppose it's not domestic?

Mr. John D. Mosser: I know --

Justice Hugo L. Black: Suppose the United Fruit Company, to get a dispute with the United Fruit Company here, in connection with some of its work in South America, do you mean that the Norris-LaGuardia Act would allow that United Fruit Company to get an injunction?

Mr. John D. Mosser: I think it would, Your Honor.

I think --

Justice Hugo L. Black: That's the basis of your argument.

Mr. John D. Mosser: I -- I think so, Your Honor.

I don't -- this is a -- this is shipping and it -- its -- its unique in this sense that it's the only case were foreign conditions of employment actually come into the United States territorial waters.

But I don't think it's any different than if the United Auto Workers picketed General Motors and said, "We want you to stop paying German wages in your Opel factories in Germany."

Or someone picketed General Electric and said, "We don't want you to -- to build anymore parts in Japan for our television sets using Japanese labor."

It's a question of whether American labor has the right to picket over the use of foreign labor and -- and to try to change the conditions of labor all over the world.

Now, in past cases, the Court has been very clear that when Congress wanted to apply our laws, labor laws, to foreign employment, it required that that be spelled out.

There was a case of Foley Bros. versus Filardo, which involved the Eight Hour Act.

And there you had an American employer and American employee, working on the United States base in Iran.

And the question was whether the Eight Hour Law applied to that employment.

And the Court said there was universal language.

Every laborer, every employer, it said, this does not apply, because if Congress wants us to apply laws to situations of labor in foreign countries, where everyone knows labor conditions are far different, they must specifically spell it out.

In another transportation field, there have been two cases, as to whether the Federal Mediation Board had jurisdiction to determine a bargaining agent or hold a representational election for the right to represent airline dispatchers working in foreign country.

And both the Board and the -- the Courts of Appeal, upholding them, have said not.

They have said that Congress must be explicit when it wants us to apply American laws to foreign employment situations.

Then they closest case we have, of course, is the Benz case, which was a situation virtually identical with his concerning the Labor Management Relations Act.

You had there an American union picketing a Liberian vessel in an American port.

And the question was whether the Taft-Hartley Act preempted the District of the -- of the -- the jurisdiction of the District Court.

Now, that was a jurisdictional question just as this is a jurisdictional question.

There, as here, the crew was foreign and had signed articles subject to Liberian law abroad.

And there is here, the terms and conditions of employment were far below those in American ships competing.

And there as here, the union said that we are trying -- they -- they clearly said there as they don't here, “We want to represent this crew and -- and be its bargaining agent."

But they also said, “We're trying to protect our interest in the grain trade between Portland and India."

And, I think, that if in that case, the Taft-Hartley Act didn't apply with virtually -- except for that one word tenure the same definition of labor dispute.

It is hard to see how the Norris-LaGuardia Act would apply in this situation.

Getting outside the labor field, we have the example of Romero and Lauritzen, where this Court has said that the universal -- every seaman of the Jones Act does not necessarily apply to a foreign seaman injured aboard a foreign ship.

And in Romero, the Court specifically pointed that it would be -- it's -- it's not within any policy of the United States and would be a terrific burden on commerce if the standard of compensation must change in every port to which the vessel goes.

Now there, you were talking about compensation for an injury which may or may not occur.

But I think the standard of wages is much more significantly a standard of compensation that can't change in every port to which the vessel goes.

If you look at the legislative history of the Norris-LaGuardia Act, the Act itself says nothing about applying to foreign shipping or to foreign commerce at all.

If you look at the -- its legislative history which we have included a few excerpts that we were able to find that shed any light at all and they aren't talking about this foreign shipping problem, but there is language there, such as the Court relied on in the Benz case that it was enacted to take care of domestic disputes involving American working men, the working men of this country which would indicate that it was not intended to apply in this situation.

Justice Hugo L. Black: One of the reasons that I understood from the passage of the Norris-LaGuardia Act was that many people thought that it was doing an injury to courts to issue an injunction to the -- such controversial field.

As far as that reason was concerned, if it is about that reason, is to be no difference between foreign ship controversy and the domestic one when you --

Mr. John D. Mosser: I think that the reason, so far as it applies would be the same, Your Honor.

I think, though, that the question here is -- certainly, Congress has since given back to the courts power to issue injunctions in many cases.

And I'd like to point out here the -- the problem that arises, if Taft-Hartley doesn't apply, if we aren't going to go aboard these ships and certify collective bargaining agents, then there is no equality if these treaty means equality between of -- the owner of a foreign ship and the owner of an American ship, because without certification, you can never put an end to your labor disputes.

Whereas, in -- on the American ship, once you had a bargaining agent, it would be an unfair labor practice and you could get an injunction through the Board, if some other union came along and picketed you.

Under the new Act, if somebody wants to represent the seaman aboard a ship, they -- or aboard it -- for any employer, they can picket, but within 30 days, they must apply to become for an -- certification election.

Here, they could never apply under the interpretation that's been given to the Taft-Hartley Act.

And so, you would have the situation that one union could picket for 30 days then it would to stop, perhaps, if there's any way to get to the Board to stop it.

But another union could come along.You just never have an end to the organizational problem which are our laws supplementing Norris-LaGuardia have taken care of for American employers.

Justice Felix Frankfurter: Let me ask you this, Mr. Mosser.

I think Mr. Jennings, though may misinterpret him, but I got the impression that he was not show whether relief could be held even by way of injunction in a state court.

It all events whether I'm right or not as to what he said.

What do you say, could the relief he had?

The reason I ask you this, there was real abuses, which led to the enactment of the Norris-LaGuardia Act derived from the abuses of issuing injunctions in the federal courts by a reason of diversity of citizenship.

There were hardly -- there were few cases in which the Court had jurisdiction as such in the federal courts, in the Debs case, of course, where they strike an example.

But on the whole, in the main overwhelming mischief that was complained of and that was felt in rightly -- as I believe, was that the adversity cases got into the federal court.

The jurisdiction and that led to this injunction.

And that embroil the federal court in -- in none -- so-called federal litigation in issuing injunction.

Now, do you think, in this case, have you any viewers to whether this litigation could have been begun?

The test could've been successfully pursued in the state court?

Mr. John D. Mosser: I think probably that the same result would obtain, in this case, in a state court.

Justice Felix Frankfurter: Meaning --

Mr. John D. Mosser: You'd have the same problem.

There was a --

Justice Felix Frankfurter: What's the basis of jurisdiction apart from -- is it the admiralty tort?

Mr. John D. Mosser: I -- I think, this is a maritime tort --

Justice Felix Frankfurter: -- so that you can --

Mr. John D. Mosser: -- in this case.

And I think the maritime --

Justice Felix Frankfurter: Putting the Romero case aside for a moment, so you're in the federal court because this is an admiralty jurisdiction statute?

Let's suspend the (Voice Overlap) --

Mr. John D. Mosser: All right.

Justice Felix Frankfurter: -- question of --

Mr. John D. Mosser: No.

Justice Felix Frankfurter: -- trade of course.

And would -- would that afford basis in the state courts?

Mr. John D. Mosser: I -- I think it could be a savings clause action --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John D. Mosser: -- in the state court.

The State would have a little Norris-LaGuardia Act, where you'd have the same problem of whether this was a labor dispute within the meaning of that particular Act, instead of the federal Act, you might have different legislate history, I don't know.

Justice Felix Frankfurter: I know of many States says that if you examine how many States now have what you call a little Norris-LaGuardia Act, could many --

Mr. John D. Mosser: I can't.

It -- it's well up in -- to close to 30, I think --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John D. Mosser: -- Your Honor.

Justice William J. Brennan: Did you suggest, Mr. Mosser, this might be savings clause action?

Mr. John D. Mosser: Well, I -- I think, Your Honor, that if -- as we contend, this is a maritime tort.

It is one which -- of which the federal courts have maritime jurisdiction and any -- the -- the Court in Romero said that any case, regardless of the remedy, saw it as a case of admiralty in maritime jurisdiction.

If that's true, if you brought it in the state court, it would be a savings clause action, I believe.

Justice Felix Frankfurter: If the state court has a common law remedy.

Mr. John D. Mosser: If the state court has a common law remedy.

Justice William J. Brennan: Is the injunction such (Inaudible)

Mr. John D. Mosser: There are cases, Your Honor, Supreme Court cases reviewing state court decisions which hold that a suit for equitable relief is a savings clause action that the common law remedy was not --

Justice Felix Frankfurter: Common law with English law not -- not --

Mr. John D. Mosser: The English law --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John D. Mosser: That's right, Your Honor.

Justice Charles E. Whittaker: (Inaudible)

Mr. John D. Mosser: What -- the question, if I understood it, was whether an injunction which is an equitable remedy was within the meaning of the savings clause -- saving the suitors all remedies, which the common law is confident to provide.

And the Court has interpreted common law there, to be the English law including equitable remedies as well as a common law remedies.

Justice Charles E. Whittaker: Do you (Inaudible)

Mr. John D. Mosser: Yes, Your Honor.

I think it's an important one.

And I think, probably, the -- the rest of my time would best be devoted to it.

Chief Justice Earl Warren: Yes.

Yes.

Mr. John D. Mosser: The basic jurisdiction --

Chief Justice Earl Warren: Yes.

Mr. John D. Mosser: -- of the District Court was challenged for the first time in the Court of Appeals.

In the District Court, the only argument had been the one we've had here so far as to whether Norris-LaGuardia labor dispute was present.

The Court of Appeals found jurisdiction under Section 1331.

And as counsel points out, there is a seeming conflict between that decision and the decision of this Court last year in Romero.

Now, I think the sounder basis for jurisdiction here is in admiralty, which -- and the question is whether admiralty has the power to issue the equitable relief of an injunction.

At the outset, I'll say that there is dictum in decisions of this Court that admiralty does not have equitable remedial powers and does not issue injunctions except in cases of limitation of liability.

However, that decision was in the case of Schoenamsgruber versus Hamburg American Line.

These cases are discussed at 22 and -- to 24 of our brief.

That was a -- a case in which the question was whether a -- a District Court could stay proceedings pending arbitration.

And the Court held that it could and in the process of it, noted that a stay of proceedings was not an injunction, but it went on to have this gratuitous language that admiralty doesn't issue injunctions.

There are earlier cases.

The Eclipse is perhaps the fountain of this doctrine from the Supreme Court.

That was a case where the request was that a court of admiralty, reform a contract for the sale of a vessel and enforce some trust provisions.

Now, admiralty doesn't deal with sales of vessels to begin with.

The sale of a vessel is not a -- a suit over the sale of a vessel isn't the suit in admiralty.

So, of course, this claim for equitable relief, in connection with a sale of a vessel, wouldn't be within admiralty.

The Court there noted the claims were -- there was nothing maritime about the claims.

That was the language of the Court.

Yet, it went on to give again this dictum that admiralty -- although it exercises its jurisdiction upon equitable principles, has not the characteristic powers of the court of equity.

Now, I think recent decisions of this Court has made clear that the real doctrine is that when admiralty has jurisdiction, when the basic subject matter of the suit is an admiralty claim, admiralty has equitable powers, whenever they're necessary to justice.

Romero, itself, said that all claims regardless of the remedy sought involving a maritime cause of action where cases of admiralty and maritime jurisdiction.

It said that in giving its reason for lack of jurisdiction under 1331, that the admiralty courts had been completely adequate to the vindication or protection of rights grounded in federal maritime law.

Now, if they didn't have equitable powers when they were necessary, they couldn't be completely adequate to the protection of those rights.

In Swift & Company versus Compania Colombiana, in 1950, this Court pointed out a lot of this dicta in passed decision and described them as a good deal of loose talk and said that in that case, admiralty could set aside the fraudulent transfer of a vessel.

The libel there was in personam with foreign attachment and the attachment was necessary to the jurisdiction of the Court.

The basic libel was clearly within admiralty's jurisdiction.

And the Court there -- what happened?

The respondent in the suit transferred the vessel to somebody else, before it was attached.

And unless that fraud -- that transfer which the Court held was fraudulent, could be set aside.

The attachment would have to be dissolved and there would be no jurisdiction in the Court.

Justice John M. Harlan: Am I right in thinking that the lower court did not deal with this problem?

Mr. John D. Mosser: The lower court did not deal with it.

Justice John M. Harlan: And you didn't assert, did you, in the lower court?

Mr. John D. Mosser: In -- in the District Court, no question of jurisdiction was raised, Your Honor.

The pleading has denominated the complaint, not a libel, so we clearly -- as far as labor was concerned, weren't on the admiralty side.

In the Court of Appeals, the situation was this.

The arguments were both had before this Court's decision in Romero.

There we briefly pointed out to the Court that admiralty was a possible basis of jurisdiction, but our main argument was centered around the -- what was decided in -- in Romero.

We were arguing that any case of federal merit -- involving federal maritime law was one arising under the Constitution and laws of the United States, within the meaning of Section 1333.

The Court of Appeals' decision followed the dicta of this Court and said that admiralty cannot issue an injunction, but said this is a clear distinction from the situation in Romero, because Romero had a completely adequate remedy in admiralty.

Here, this is a case in equity.

It is -- there is no completely adequate remedy in admiralty and therefore, we think that the reasoning of Romero would not apply to this case.

And since it is a maritime claim arising under the Constitution of the United States, it is one where federal question jurisdiction exists.

There is no implied exception as was found in Romero, because of the -- an adequate alternative remedy.

Justice Felix Frankfurter: But why -- why did you answer unequivocally, Justice Harlan's question?

The Court of -- knows what they can deal with this question.

It deal with the (Voice Overlap) --

Mr. John D. Mosser: It did deal with it.

Yes --

Justice Felix Frankfurter: (Voice Overlap) certainly it dealt with it.

Mr. John D. Mosser: I think you're -- you're right.

The lower -- the Court of Appeals followed the dicta of this Court and said that admiralty can't issue an injunction based on the Eclipse and the Hamburg American Line case.

But it was not argued at any great length, if that's your point in the lower court.

Justice Felix Frankfurter: But the whole question of whether admiralty commits an injunction was canvassed alone, wasn't it?

Mr. John D. Mosser: I think it was, Your Honor.

And they decided that it could not --

Justice Felix Frankfurter: Could not --

Mr. John D. Mosser: Therefore, there was no adequate remedy in admiralty contrary, I think, to the decision of Romero that admiralty jurisdiction was completely adequate and that all cases, regardless of the remedy sought, were cases of admiralty and maritime jurisdiction.

But if --

Justice Felix Frankfurter: Can Judge Pope -- can Judge Pope say since admiralty can't issue an injunction, this isn't admiralty ergo it is law in equity.

Mr. John D. Mosser: Judge Pope did not say that.

Justice Felix Frankfurter: What did he say?

Mr. John D. Mosser: Judge Pope -- I think the other two judges said that, Your Honor.

Judge Pope just very briefly said that the basis of Romero was that there was a completely adequate jurisdiction for Romero in the smoothly functioning admiralty jurisdiction.

Justice Felix Frankfurter: He really sought -- was injunction against the maritime tort, which is Judge Pope.

Relief of that character is wholly unknown to an admiralty court.

This was not a case in respect to which a federal admiralty court -- courts have been completely adequate to entrust to protecting maritime rights, put it in federal law.

Therefore --

Mr. John D. Mosser: That's right.

Justice Felix Frankfurter: He may --

Mr. John D. Mosser: He doesn't say it's an equity, but he says it isn't an admiralty.

Justice Felix Frankfurter: (Voice Overlap) well, I know, but therefore he says Romero doesn't apply.

Mr. John D. Mosser: That's right.

Justice Felix Frankfurter: And it doesn't apply because he says that admiralty can't issue an injunction

Mr. John D. Mosser: That's right.

Justice Hugo L. Black: So I should -- myself was given the opposite (Inaudible)

Mr. John D. Mosser: I think for -- I think your answer would have been the better one.

It was considered below and -- and both the majority and minority decisions held that admiralty could not issue an injunction.

Justice Charles E. Whittaker: Mr. Mosser, why do you say this is involved in the maritime claim?

Mr. John D. Mosser: Your Honor, the suit here was to stop picketing which was occurring on navigable waters with one ship circling around another.

It was to stop the intentional interference with maritime contracts of affreightment and for the discharge of the vessel.

The Court found that it was the intention of petitioners, through their picketing and through their circling and through the threats which they made to the consignee of the cargo to prevent this ship from securing a berth and discharging its cargo.

Now, those were maritime rights, the right to proceed with the vessel, the right between -- the contract between the vessel and the -- the dock, which were interfered with.

Justice Charles E. Whittaker: Were they such or were they rights under the Commerce Clause of the Constitution?

Mr. John D. Mosser: They maybe both Your Honor, but I think they're clearly maritime rights.

They may also, as we argue and this is an alternative ground of jurisdiction that these rights arise under the treaty between the Republic of Liberia and the United States

Justice Charles E. Whittaker: But that treaty applies only, does it not, as to claims grounded in resounding in tort?

Mr. John D. Mosser: Under -- well, our action is in tort.

I think that's clear.

Justice Charles E. Whittaker: An action for an injunction is one in tort?

Mr. John D. Mosser: They -- the basic cause of action is for a tort.

Certainly, if it were not a tort, I don't think you could enjoin it.

Justice Charles E. Whittaker: Then you use the word tort as a result of an infringement of a constitutional right to do interstate to inform commerce?

Mr. John D. Mosser: I think so, Your Honor.

Justice Charles E. Whittaker: You think that's a tort?

Mr. John D. Mosser: I think so.

And if you look at Section 1350 of the Judicial Code, it specifically gives a -- a right of action to any alien and all the plaintiffs' respondents here were aliens.

The District Court shall have original jurisdiction of any civil action by an alien for tort only, committed in violation of the law of nations or a Treaty of the United States, so the Judicial Code clearly recognizes that you can have a tort violation of a treaty.

Justice Charles E. Whittaker: I don't question that.

It seemed to me that if this is an action for an injunction in equity, it's on the law side of the Court under Section 1333.

And that you have a jurisdiction on the basis that the actions, one that does arise on the constitutional laws of the United States and you never run into the Romero problem.

Mr. John D. Mosser: Well, if your -- that if, as I said, this is an alternative ground of jurisdiction and one which we urged both below and hear that under 1331 or 1315, we've added in this Court, if there is a right here under a treaty or the law of nations which was violated, then there is a federal question entirely separate from the maritime rights that are involved.

It's only if the basis of jurisdiction is maritime that you get into the question of whether the jurisdiction is in admiralty under 1333 or under 1331, under the exception which the court below found to the Romero decision.

Justice Felix Frankfurter: And what is the starting point of the right under a treaty, the reciprocal treaty between Liberia and the United States?

Mr. John D. Mosser: That's right, Your Honor.

That treaty provide --

Justice Felix Frankfurter: You have to do a lot of -- you have to do a lot of jumping from base to base don't you?

Mr. John D. Mosser: Well, I -- I will say this.

It presents -- there is no clear case which has held the exact thing that we are supporting.

I think that by logic, you can move through the steps that we have in our brief here and arrive at that jurisdiction.

The treaty was proclaimed in such a way as to be binding upon not only the Government of the United States, but the citizens of the United States and it granted rights to the individuals.

Justice Felix Frankfurter: I'm not worried about that.

I'm worried about the content of the treaty from which -- which you claim is violated by this action.

As to that, I don't even -- I don't hold you to finding a case as to that, you have to do a good deal of -- of several spelling out derivation don't you?

Mr. John D. Mosser: Well --

Justice Felix Frankfurter: I'm not saying you can't do it, but you --

Mr. John D. Mosser: I -- I think that's --

Justice Felix Frankfurter: It is not the surface, is it?

Mr. John D. Mosser: It -- it doesn't say in black and white.

There's a cause of action, if somebody pickets here. [Laughs]

Justice Felix Frankfurter: Does it say any gray?

Mr. John D. Mosser: Well, I think it -- I think in gray, yes, Your Honor.

Justice Charles E. Whittaker: (Voice Overlap) --

Justice Felix Frankfurter: Light gray or in heavy gray? [Laughter]

Mr. John D. Mosser: Well, I'll make it heavy [Laughter].

You might find it light.

Justice Felix Frankfurter: What -- what words would you -- what words are gray to you?

Mr. John D. Mosser: Well, I think there is --

Justice Felix Frankfurter: What makes you (Inaudible) the treaty is gray?

Mr. John D. Mosser: I think there is language in the treaty which would indicate an equality of rights between Liberians and citizens of the United States and you have to interpret what inequality they were talking about, whether they meant that the Norris-LaGuardia Act should apply, for example, in that sort of thing and you have to look at whether when --

Justice Felix Frankfurter: Well, I can -- I can see if there's some provision they shall be found -- general provision they shall be free from the judicial process interfering with the free passage of the vessels.

You haven't got anything like that, simply shall (Voice Overlap) --

Mr. John D. Mosser: No.

Justice Felix Frankfurter: -- be reciprocity.

And how you -- you'll have to do a good deal of -- of footwork.

Brain -- headwork rather, not footwork, headwork to go from a general provision of reciprocity to saying the Norris-LaGuardia Act can be construed this way.

Mr. John D. Mosser: I don't think this -- one thing I would point out that this isn't necessarily a reciprocal treaty or one which creates equal rights.

It states that vessels of Liberia in our waters will be considered vessels of Liberia, not Americans ships.

It specifically, by another article, prohibits Liberia.

Justice Felix Frankfurter: You will need a treaty for that, do you?

Mr. John D. Mosser: It prohibits Liberia from entering our costal trade.

In other words, they're not made equal with American vessels in entering our coastal trade.

There are some equal -- when they talk about entering our courts, they say they shall enter on -- on the same basis as American citizens, but the right of freedom of commerce and navigation, as guaranteed by this treaty, isn't stated in terms of equality.

It says flatly, there shall be a freedom of commerce and navigation between the two countries.

And I --

Justice William J. Brennan: Excuse me, Mr. Mosser.

Is there another article besides Article 15 upon which you rely in this -- making this argument?

Mr. John D. Mosser: Well --

Justice William J. Brennan: Article 15 --

Mr. John D. Mosser: Article -- Article 15 merely makes clear that the vessel is one of Liberia -- to be treated as a Liberian vessel, regardless of ownership for a consignee or anything of that kind.

Justice William J. Brennan: Why do we have them (Voice Overlap) --

Mr. John D. Mosser: Article 7 is quoted at page two of our brief and that's the one that it says that, “Between the territories of the high contracting parties, there shall be freedom of commerce and navigation in the nationals.”

And here, the two corporate plaintiffs are Liberian nationals, shall have the right to come and go with their vessels.

Justice William J. Brennan: Yes.

Justice Hugo L. Black: And you said several times, this is the maritime tort.

Do we have to face on that to determine the principal jurisdiction on the Norris-LaGuardia Act?

Mr. John D. Mosser: Well, Your Honor, there was no claim made until a petition for rehearing below that there wasn't a -- a tort here, if Norris-LaGuardia didn't protect the conduct.

Justice Hugo L. Black: Where are the -- the question I asked was whether we have to think about that at all in connection with determining whether this -- under the Norris-LaGuardia Act.

Mr. John D. Mosser: I don't think so, Your Honor.

I -- I think that they haven't really challenged that there is.

We've cited some cases on our brief that show that this is a -- a -- that interference with maritime contractual relation is a maritime tort.

Justice Felix Frankfurter: I'm not sure that if it -- it --

Mr. John D. Mosser: No.

Justice Felix Frankfurter: -- it isn't impertinent to intervene.

I'm not sure that you get the whole force of Justice Black's question.

If we determine -- if the Court determines this is a limitation upon the courts not to issue an injunction in labor controversy on the Norris-LaGuardia Act applies to this, we don't have to bother what the nature of the suit is, don't we?

Mr. John D. Mosser: Your Honor's question is whether --

Justice Felix Frankfurter: Do you have the question?

Mr. John D. Mosser: Yes.

In other words, if -- if you apply that the -- if you determine that the Norris-LaGuardia Act applies, well, then clearly, the --

Justice Felix Frankfurter: If they remanded the litigation as to --

Mr. John D. Mosser: Well, the injunctive relief has clearly ended and I --

Justice Felix Frankfurter: But all we have here --

Mr. John D. Mosser: The suit was for damages as well.

But at the present time, the only thing on appeal is the injunction, so your --

Justice Felix Frankfurter: That --

Mr. John D. Mosser: -- the Court would not necessarily reach the other question.

Justice Felix Frankfurter: But isn't that true?

Isn't that all there is before us now?

Mr. John D. Mosser: The injunction, Your Honor.

Justice Felix Frankfurter: The injunction.

Mr. John D. Mosser: Right.

Justice Felix Frankfurter: If your answer to Justice Black is, yes, then isn't it?

If Norris LaGuardia limits the Court in -- as to this litigation, it's an end of it, so far as we're concerned.

Mr. John D. Mosser: You would reverse the judgement below and remand, I don't think you would direct the dismissal of the complaint.

Justice Charles E. Whittaker: Do you not, is that quite correct?

Would you not have to first be in the court that had power to hear before the Norris-LaGuardia question prohibiting injunctions in special cases would arise?

So don't you have to show a fundamental basis of jurisdiction in the court before you get to the Norris-LaGuardia question?

Mr. John D. Mosser: Well, Your Honor, I think we have two burdens.

We have to show fundamental jurisdiction and we have to show that there is no labor dispute.

Justice Charles E. Whittaker: Yes.

Mr. John D. Mosser: If -- if you resolve either of those questions against this, I suppose it -- it terminates the case against us --

Justice Charles E. Whittaker: Yes.

Mr. John D. Mosser: -- to that extent.

Justice Charles E. Whittaker: But my point is that before we can get to the Norris-LaGuardia question, do we not have to find that there was -- there would be jurisdiction otherwise?

Mr. John D. Mosser: I think that the normal method by which the Court proceeds is to first consider basic jurisdiction, but I don't suppose there's anything that requires that and if the Court wanted to say, we don't have to consider basic jurisdiction, there wouldn't have been a right to issue an injunction here anyway.

Justice Felix Frankfurter: Well, then --

Mr. John D. Mosser: It could reverse on that ground.

Justice Felix Frankfurter: (Voice Overlap) wouldn't the normal thing, in this case, be to deal with that problem of jurisdiction which is conclusive no matter what?

If the Norris-LaGuardia Act is conclusive no matter what, why bother whether it refers to find that we have jurisdiction on some other ground?

Mr. John D. Mosser: I think either question of jurisdiction could be conclusive no matter what if you decided it against us.

Justice Felix Frankfurter: Yes but -- [Laughter] it -- it maybe conclusive.

Yes, but if -- if Norris-LaGuardia does apply, then it must be conclusive.

Mr. John D. Mosser: That's correct.

Justice Charles E. Whittaker: Well, the Court Of Appeals here has granted an injunction.

Mr. John D. Mosser: The Court of Appeals has affirmed to grant up an injunction by the District Court.

Justice Charles E. Whittaker: Now, then, for you to keep that judgement and getting affirmance, if the questions so feel, you'll have to show, would you not, both basic jurisdiction and non-applicability of Norris-LaGuardia?

Mr. John D. Mosser: Certainly, Your Honor.

Justice Charles E. Whittaker: So then do you not have to sustain here both burdens --

Mr. John D. Mosser: Certainly.

Justice Charles E. Whittaker: -- if you -- if you're to win?

Mr. John D. Mosser: That's right

Justice Charles E. Whittaker: Now then, what's the basis of your jurisdiction, your fundamental jurisdiction?

Mr. John D. Mosser: I think there are -- there are several alternative bases, Mr. Justice Whittaker.

There is a basis of jurisdiction under 1331 and 1350 because of treaty rights.

There is a jurisdiction under 1333 because of maritime rights and we claim that admiralty has the power to issue an injunction.

If admiralty has not the power to issue an injunction, there is a basis under 1331 because of the substantive maritime law applied and no adequate alternative remedy in admiralty.

Justice Charles E. Whittaker: And everyone of your hypotheses includes the assumption that this is a “maritime claim” as contemplated within the meaning of Footnote 23 of this Court's opinion in the Romero case.

Is that right?

Mr. John D. Mosser: I don't think the rights under 1331 and 1350 which are based on treaty rights necessarily involved the maritime nature of the case, so I think the -- that certainly the rights under 1333 or the right under 1331, because of maritime tort depends upon that exception.

Justice Charles E. Whittaker: The Court was at pains in this Footnote 23 to point out, that all suits involving maritime claims regardless of the remedies sought, our case is in admiralty and maritime jurisdiction, but they first have to be maritime claims.

Mr. John D. Mosser: That's right.

Justice Charles E. Whittaker: Can you say this is --

Mr. John D. Mosser: Certainly, Your Honor.

Justice Hugo L. Black: But you can't get to it, can you, unless if the Norris-LaGuardia Act bargained.

You never have to -- we have that reset (Voice Overlap) --

Mr. John D. Mosser: That's right.

You can start with either jurisdictional question.

Justice Charles E. Whittaker: (Voice Overlap) --

Justice Felix Frankfurter: And you don't have through (Voice Overlap) --

Mr. John D. Mosser: I hope you will reach both of them and -- and resolve from both in favor of the respondents --

Justice Felix Frankfurter: Yes.

Mr. John D. Mosser: -- and affirm the judgement below.

Thank you

Chief Justice Earl Warren: Mr. Jennings.

Argument of John Paul Jennings

Mr. John Paul Jennings: Mr. Chief Justice, if Your Honors please.

I would like to clarify one matter which is in nature of its dispute that we have here.

We have issued all intent to interfere anyway with the internal economy of this ship.

We realize because of this Court's decision in the Benz case and we could not represent or seek to represent these foreign seamen or to bargain for them.

The position of the union is best expressed in the picket sign which was used on board the Willoughby, as it circled the Nikolos.

The AFL-CIO seamen protest loss of their employment, because of the use of foreign flagships employing seamen at substandard wages.

That was the nature of the protest.

The dispute could have been settled in a variety of ways.

The record indicates that Mr. Schultz, who was the assistant operating manager of National Boat Carriers also he's the assistant operating manager of Transea and of Seatankers which is a respondent in this case, so that these American corporations are closely related in Seatankers.

Seatankers was the agency which selected the Nikolos to use in this trade.

And necessarily, we hope that the economic pressure which we used could influence Seatankers, perhaps, to change its mind.

And certainly if the only reason for employment of a foreign ship is that the wages, hours and conditions on that ship, are one-fifth of those on American ship, but that reason disappears and American ship would be used, so that the conditions on the Nikolos were important with the union.

They existed as conditions.

The conditions work that the wages were one-fifth of those on these American ship.

But this was a fact which existed when Seatankers procured the Nikolos to enter the salt trade.

So that that is the nature of the dispute and we think that the Norris-LaGuardia Act should apply to it.

There are other problems Mr. Mosser suggested that if we picketed a railroad company that that might be within the protection of the Norris-LaGuardia Act, but obviously it would not, because the industry would be different.

The trade, craft and occupation would be different.

We would not be in the same industry.

It would be a different industry and Norris-LaGuardia would not apply.

We think that a case more closely analogous would be a case in which, for example, in American Longshore Union would picket in a -- in American port to protest the use of foreign non union longshoremen on the -- American joined the foreign ship unloading the ship.

Or if, for example, an American shipowner during the course of a maritime strike, should use a foreign registered vessel, which he might even know in a trade which had been occupied by the struck ships so as to break the strike.

Or, if an American shipowner and there are some operating foreign ships under American contract, should have the termination of the contract say, I won't bargain any further and the union would be told of -- if you put up a picket line and try to strike, the Norris-LaGuardia Act will not prevent an injunction at the behest of the American shipowner.

We think those are cases more closely analogous to the present one.

Now, there was one question asked by Mr. Justice Whittaker the other day with respect to the possibility that on this foreign ship, it might be considered a little piece of Liberia in the port of Tacoma.

That problem was dealt with in the case of Scharrenberg against the Dollar Steamship Company, in which Mr. Justice Clark wrote the opinion of the Court.

That's at 245 U.S. 122 at page 127, decided in 1917.

Mr. Justice Clark said this, “It is, of course, true that for the purposes of jurisdiction a ship, even on the high seas as often said to be a part of the territory of the nation whose flag it flies.”

But in the physical sense, this expression is obviously figurative.

Quoting, International Law Digest, Moore, vol. I Section 174, “And to expand the doctrine to the extent of treating seamen employed on such a ship as working in the country of its registry is quite impossible.”

And the case was quoted with approval by this Court in the Cunard Steamship Company case.

Justice Felix Frankfurter: With reference, what was involved in that case, Mr. Jennings?

Mr. John Paul Jennings: That was a case, Your Honor, in which it was maintained that the employment of a foreign seaman on an American vessel in a foreign port constituted use of foreign labor importation of foreign labor into this country in violation of the statute forbidding it.

The Chinese seaman had been employed on --

Justice Felix Frankfurter: But he was an American citizen.

Mr. John Paul Jennings: Pardon Your Honor?

Justice Felix Frankfurter: Was the seaman an American citizen?

Mr. John Paul Jennings: He was a Chinese citizen.

Justice Felix Frankfurter: Chinese citizen.

Mr. John Paul Jennings: He was employed under an American ship in a foreign port.

Justice Felix Frankfurter: The question was whether the law applied in American --

Mr. John Paul Jennings: Whether that amounted to employment in American territory because the ship was to be treated as American as an extension of American sovereignty.

Justice Felix Frankfurter: And they held not.

Mr. John Paul Jennings: And this Court said not.

Justice Charles E. Whittaker: Are many cases -- doesn't the Harrisburg hold the crime committed in the port of New York confined vessel is one committed on foreign island or foreign lands, foreign territory?

Mr. John Paul Jennings: I think not, Your Honor.

The -- the courts have uniformly recognized that the sovereign of the territory in which the ship is even though it be a foreign ship, may exercise jurisdiction, but as a matter of comity, they normally do not, if it involves inner -- internal relations, relations between the -- the members of the crew and the foreign government.

So the result is if it's a minor crime, normally, we do not exercise jurisdiction.

If it's a major crime, we do.

And for example, the Prohibition Act was applied to foreign ships when they entered American Courts.

That was the Cunard case.

Justice Felix Frankfurter: Mr. Jennings, don't you think we have enough problems on this case without getting into that?

Mr. John Paul Jennings: I think so, Your Honor.

Justice Felix Frankfurter: Tangled territory of the criminal liability with regard to ships?

Mr. John Paul Jennings: I wanted to answer Mr. Justice Frankfurter's question.

Justice Felix Frankfurter: Yes, I appreciate all the information, but I just wonder when you thought we have to decide that too.

Mr. John Paul Jennings: I don't think so, Your Honor.

In conclusion and we think that the Benz case in this Court, which I think is a case relied on principally by Mr. Mosser, is not controlling in this litigation that the Norris-LaGuardia Act does apply and that the injunction was improvidently granted.

We urge also that in any event, the jurisdiction did not exist below and I wanted to point out that the Court of Appeals believed that the respondents here were not relying upon Section 13 -- 1333 because it is stated in the majority opinion at page 143, “Appellee," that is a respondent here, "has also refrained from invoking jurisdiction on the admiralty side under 28 U.S.C. 1333."

This position may have been dictated by the inability -- unavailability of a jury trial on the damages in the admiralty and because of appellee's belief that admiralty cannot afford injunctive relief so that --

Justice Felix Frankfurter: Well, if -- may I ask you (Voice Overlap) --

Mr. John Paul Jennings: -- the Court felt that they were not relying on Section 1333.

Justice Felix Frankfurter: It is your position that this isn't within admiralty jurisdiction of the Court, admiralty is incapacitated from granting the injunction?

Mr. John Paul Jennings: No, Your Honor.

Our position is that, if this be a maritime tort at all and we don't think it has been --

Justice Felix Frankfurter: Yes.

Mr. John Paul Jennings: -- established that it is.

Justice Felix Frankfurter: Yes.

Go on.

Mr. John Paul Jennings: If it be a maritime tort, it is within the exclusive jurisdiction of admiralty and that in that event, the choice is either to sue an admiralty in which event, there is no injunction or to sue one at savings clause in the state court where you may procure an injunction.

Justice Felix Frankfurter: Well, didn't -- and my question was whether -- because admiralty -- it isn't within admiralty.

Of course, one starts that there must be a substantive offense.

The injunction is a remedy, but you say assuming it is an admiralty clause, start with that --

Mr. John Paul Jennings: Yes, Your Honor.

Justice Felix Frankfurter: -- then why is it not admiralty because admiralty can't issue an injunction, was it?

Mr. John Paul Jennings: It is in admiralty, Your Honor, but the remedy of injunction is unavailable.

Justice Felix Frankfurter: Well, that -- yes, it is an admiralty --

Mr. John Paul Jennings: Yes.

Justice Felix Frankfurter: -- and since admiralty can't issue an injunction, admiralty has no power in the premises.

Mr. John Paul Jennings: Admiralty would have no power.

Justice Felix Frankfurter: And since it is admiralty, although it can't accord relief, you can't go on the law of equity side.

Mr. John Paul Jennings: That's correct, Your Honor.

Justice Felix Frankfurter: All right.

Chief Justice Earl Warren: Mr. Jennings, I -- I notice from your -- your conclusion in your brief that you -- you asked in the event, we decide in your favor that the action be dismissed.

Does that mean that we -- we should reach both jurisdictional questions here?

Mr. John Paul Jennings: I think not, Your Honor.

Chief Justice Earl Warren: After we do that?

Mr. John Paul Jennings: That was because, as we explained in our brief, we felt if the Norris-LaGuardia Act applies in the conduct of the -- the union in picketing, it was protected by the provisions of the Clayton Act and therefore, it was perfectly lawful.

That was the reason.

Chief Justice Earl Warren: I see.

Justice Felix Frankfurter: You mean to say that everything as to which no injunction could be issued is protected?

Mr. John Paul Jennings: No, Your Honor, only the conduct of the union here which was only peaceful patrolling and no more than that.

Justice Felix Frankfurter: Yes.

I understand that, but I don't see what the relevance of the limitation of the Norris-LaGuardia Act has to do with it.

Mr. John Paul Jennings: That --

Justice Felix Frankfurter: I thought your answer to Chief Justice Warren that if the Norris-LaGuardia Act applies, then it's protected.

Is that -- is that what you say?

Mr. John Paul Jennings: I -- I would say that it is protected by the language of Section 104 (e).

Justice Felix Frankfurter: Well, not because you can't get an injunction in the federal court.

Mr. John Paul Jennings: Not because you can't get an injunction.

Justice Felix Frankfurter: All right.

All right.

I (Inaudible)

Mr. John Paul Jennings: Yes, Your Honor.