U.S. BULK CARRIERS v. ARGUELLES
Legal provision: 46 U.S.C. 596
Argument of George W. Sullivan
Chief Justice Warren E. Burger: We'll hear arguments in number 29, U.S. Bulk Carriers against Arguelles.
Mr. Sullivan, I'm sure that you and your friend probably realize that if you want to get back to New York, one way to do it -- to New York and Baltimore respectively, one way to do it is to finish up this rapidly as you can.
Mr. George W. Sullivan: We'll do our best Your Honor, Mr. Chief Justice and may it please the Court.
In this case, the petitioner a steamship operator has sought to review the decision of the Fourth Circuit Court of Appeals, a divided decision which reversed the U.S. District Court in the City of Baltimore.
The case involves an essence whether the grievance and arbitration procedures in the collective-bargaining agreement was negotiated by the National Maritime Union with the steamship employer will be the basis upon which the disputes that have arisen and are referred to in this case will be resolved.
The initial cause of action as stated by the respondent in the District Court sought to recover firstly a transportation differential between first class and second class transportation.
That was resolved before the case ever got to its final posture in the District Court.
The next item in his claims involved certain overtime earnings that he said, he was entitled to, but had not been paid and these were disputed by the master of the vessel the time he signed of articles in the port of Saigon.
The third issue involves alleged penalties to which he refers as a source of entitlement 46 U.S.C.A. Section 596.
Now, to see this case more or less in the posture, I'd like to review briefly the facts.
Mr. Arguelles, American merchant seaman was engaged in the Court of Galveston, Texas on August 3, 1965, to service an ordinary seaman aboard the SS U.S. Pecos.
This is a merchant vessel.
It's not a naval vessel despite U.S. in the title.
He served aboard the vessel and at the time when the six months which was the period of the articles he signed has part of his engagement expired on February 3, 1966.
The vessel was entering an anchor -- anchorage off of Cap St. Jacques which is just off the coast of South Vietnam.
The vessel was destined to go to Saigon to discharge cargo which was in the ship.
The local authorities denied pratique -- they didn't deny pratique, they just didn't run it.
As a practical matter, the vessel couldn't go up the river to the port to discharge and everyone was required to stay on the vessel until pratique was granted.
This is a form of clearance to establish that the crew is healthy, meets the quarantine requirements and what have you.
On February 13th, pratique was granted and the vessel proceeded up the river to Saigon, a trip of some seven hours.
There up from the 15th cargo discharge was started.
And on the 17th, the respondent, in the company of 17 other men asked to be sign off articles.
They were referred to the U.S. Consul who was acting in that court in the capacity of shipping commissioner which is customarily inform ports when the seaman leave the ship.
The men were given a payroll voucher which outlined the earnings, the base wages and overtime.
This was certified by the consul and the men were given transportation to return to the United States, a dispute arose at that time.
The men wanted to be paid off in cash because of the situation in South Vietnam and the currency situation, U.S. currency was not given to the men.
They were allowed $50 to use for expenses incidental perhaps to travel home.
Because of the dispute that arose, the men respondent included Mr. Kline.
They left the next day and based on the testimony of the respondent in his pre-trial deposition, he arrived in Galveston on or about the 19th of February.
For reasons of his own convenience I assumed, he didn't report to the company agent until the 22nd of February when he was given cash as certified to in the voucher.
It is his claim that this was wrong, he shouldn't been paid off more expeditiously that this was a violation of Section 596.
The failure to give him his overtime wages was likewise a failure to pay earn wages even though they have been disallowed by the department head on the vessel in accordance to terms and provisions of the collective-bargaining agreement.
Further, he was claiming because the 11 days when pratique had not been granted at the anchorage of Cap St. Jacques, that he was unjustifiably restricted to the ship and it was entitled additional eight days or rather 11 days of overtime, eight hours a day, as a penalty.
It gets somewhat confusing in analyzing the claim for penalties due to it appears that at one point in the complaint filed the District Court.
There is a claim of double a day's pay as provided for in Section 596 as the penalty.
On top of the penalty, overtime not paid the rather claim for restriction to ship but not paid.
Now, our position in essence is this, that all of the claims that have been presented here are based on the terms and provision to collective-bargaining agreement.
And in the collective-bargaining agreement, there is a procedure for presenting grievances, a procedure for arbitration and it has been the position of the petitioner that at least in the first instance based on the decision of this Court, he is required to pursue those procedures to get the remedy available if he is entitle rather than going to court and start a lawsuit.
Unknown Speaker: Well, is there an all dispute clause in the contract or just something limited to the interpretation of the contrary?
Mr. George W. Sullivan: It is limited to the interpretation of the provisions of the contract, Your Honor.
Unknown Speaker: Well, what's the statutory penalty got to do with that?
Mr. George W. Sullivan: Well, the statutory penalty --
Unknown Speaker: Let's assume the employer holds some overtime and but he was late to paying it, but then he finally paid it and that was the only thing was the question of the statutory penalty?
Mr. George W. Sullivan: If the employer owed the overtime and was late in paying it --
Unknown Speaker: And then he pays it?
Mr. George W. Sullivan: The penalty would --
Unknown Speaker: Then there's a statutory penalty for the each day that he delayed, wasn't there?
Mr. George W. Sullivan: Yes, double a day's pay but if --
Unknown Speaker: Alright, let's say, let's just assume that's all that's left over in the dispute between the parties has nothing to do with the collective-bargaining agreement.
Mr. George W. Sullivan: Well, we first have to determine the overtime is due now.
Unknown Speaker: No, the employer agrees.
He has paid it already.
Mr. George W. Sullivan: Then there would be no basis for penalty either if he was paid unless there was a delay beyond the theory.
Unknown Speaker: There was a delay.
There was a delay and the employer finally pays it.
Mr. George W. Sullivan: I assume you're speaking hypothetically as opposed to the fact of this particular case because we don't concede there was a delay in this case.
Unknown Speaker: You mean the arbitration should then consider only the amount of the overtime?
Mr. George W. Sullivan: Yes, Your Honor.
Unknown Speaker: I thought there was an all disputes clause in this contract?
Mr. George W. Sullivan: If I may read from Section -- Article XII which covers this, perhaps we're differing on terminology.
“In case a dispute arises over the interpretation of any of the provisions of this agreement, whether said dispute originates on board ship or ashore, the Union agrees to take the matter up with the Company and make every effort to adjust the said dispute.
In event that no amicable and so forth.”
This would pretty much be resolve to the disputes arising under the terms and provisions of the contract itself and --
Chief Justice Warren E. Burger: Well, what kind of disputes would arise that would not be covered under that clause, could you suggest a hypothesis that could cover all conditions?
Mr. George W. Sullivan: Well, if --
Chief Justice Warren E. Burger: Wages, hours?
Mr. George W. Sullivan: In the context of wages, if the earned wages admittedly due to a man were not paid.
I don't believe the contract will then be able to resolve that you would have to then go to the Court and sue, but the big question is determining under the contract and that's what I think is the basic issue in this case whether anything is due in the first instance.
If the money itself is due and concededly due and the company just arbitrarily refuses the pay it, I think the man then has of cause under 596 because the contract doesn't go that far.
But before you can even get to anything like that of arbitrary upon payment, one has to first determine that something is due and this is not been done and that's where I believe that it's very important that grievance procedure be pursued.
I think in the decisions of this Court in cases --
Justice Harry A. Blackmun: Then your position Mr. Sullivan is that the collective-bargaining agreement provides pro tanto anyway, a barrier to bring him suit under the statute?
Mr. George W. Sullivan: Until the disputes are resolved one way or the other and it is assumed that if they're resolve in favor of the seaman, the wages will be paid.
So, it wouldn't be a need for the penalty in that instance.
Justice Harry A. Blackmun: Then I take it, you are conceding Mr. Justice White's hypothetical situation where there was overtime and its payment was delayed but it eventually was paid and then we have a question of the availability to him of the statutory penalty.
Mr. George W. Sullivan: I believe the decisions have held Mr. Justice Blackmun that overtime wages are -- are wages, are earnings but on the context to the statutes.
So there wouldn't be any distinction between the base wage and the overtime earnings.
Once it is determined, the overtime earnings are due if they're arbitrarily would held beyond the period provided in the statute.
Penalties might very well be justified unless again we get back to another aspect of Section 596 sufficient cause.
If it can be shown there was a sufficient cause for the nonpayment of the money due then of course the penalties have not been applied in most instances.
This Court in Johnson versus Isbrandtsen determines the case that doesn't play touch the facts of this case that we're dealing here determine that there was sufficient cause and even though there was a delay in the payment because of wrongful withholding of certain funds out of earned wages.
Chief Justice Warren E. Burger: Well, isn't there a strong policy reason underlying the statutory penalty?
I think in terms --
Chief Justice Warren E. Burger: In terms of protecting a seaman who doesn't carry much of a reserve as a businessman does, isn't that part of the statutory scheme?
Mr. George W. Sullivan: I think that purpose where money is due.
It is to prevent the employer from being arbitrary and capricious and not paying money conceded to be due to the man.
Chief Justice Warren E. Burger: Well, it really -- isn't it broader than that that it's to prevent the employer from delay in payment of money dues?
Mr. George W. Sullivan: Well, when you come to the --
Chief Justice Warren E. Burger: So the main difference whether it's arbitrary or capricious under the statute, does it?
Mr. George W. Sullivan: No, but there may be sufficient cause if that is resolve then we come to another problem or that could be a problem.
But what is being claimed here.
These overtimes and restrictions to ship under the conditions that are endeavored to describe create rights that were created by the terms and provisions of the collective-bargaining agreement themselves.
Therefore, if there is a dispute, we submit it should be resolve on the basis of the grievance procedure, any arbitration procedure in the contract.
Justice Potter Stewart: Well, can you envision that the grievance procedure itself if it found that -- this overtime was due and that -- and further held, further of it was determined that they were withheld “without sufficient cause” that the grievance procedure itself could take cognizance of the statute and give double pay?
Mr. George W. Sullivan: I don't find anything in the agreement that would provide that the agreement merely provides that the resolution of the dispute would lead to the payment.
The Union will refer to the matters of the Company for payment.
You see, as a practical matter what happens when these ships pay off at the end of a voyage, it usually have a union patrolman aboard and the individual crew members that has a problem he says, well he works certain overtime that's not being allowed.
The union patrol man will talk to the department head and one is the chief mate or the chief engineer, the chief steward and they went under -- and they will resolve it there.
If this can't be done it will be referred to the contracting officer, contracting enforcement officer at the Union headquarters and it will endeavor to be resolved there between the contract enforcement officer and the company representative and the company office, and it usually would be done if not then it would go on to arbitration and the arbitration finding.
Unknown Speaker: So, when the lower court, the judge and said as I read it, they agreed that in order to bring your position are the grievance procedure but the right to certify to the seaman had to have their source in the collective-bargaining agreement.
That's where I read it and what I want to ask you is, what's the difference passage for this man's claim can be traced if the collective-bargaining agreement itself or do the articles in which he signed, which I didn't find in the record, how do you face it, how do you find it?
Mr. George W. Sullivan: I trace into the contract, Your Honor.
Unknown Speaker: Of what -- the contract of what?
Mr. George W. Sullivan: The collective-bargaining agreement that was entered into between the National Maritime Union and the employer.
Unknown Speaker: Well, you can do that?
Mr. George W. Sullivan: I have endeavored to do so both in my brief and in the outline in those sections in our single appendix we have referred to them.
Unknown Speaker: And the articles have no relevance?
Mr. George W. Sullivan: The articles contain the statutory provisions under which the man joins the vessel and they do set forth Title 46 U.S.C.A. 596.
However, the conditions under which he worked on the vessel, the nature of his duties, the nature of overtime which is not covered in the articles is determined in accordance with the agreement and the restriction to ship which he is talking about here for those 11 days when pratique was not granted off at Cap St. Jacques would be something that has been created a right given to him by the contract not by the articles.
Justice Potter Stewart: Suppose the only reason he is entitled to overtime, extra overtime pay all it's because of the collective-bargaining agreement, is that right?
Mr. George W. Sullivan: Yes, Your Honor.
This is true and this is our position and in reading the decisions in this Court it appears that the Court has gone to great lengths to give the collective-bargaining agreement.
The force almost of law, I read the phrases of the common law of the contract and the code of the industry and here we have the maritime industry that operates many, many vessels generally we're talking about a number of the unions as well as the number of companies and number of management organizations.
And they have endeavor to setup a practical basis on which to keep the vessels operating smoothly.
Determine the rights of the Union members especially in this overtime and perhaps restriction to ship area where overtime would be involved and provide a uniform expeditious basis for resolving these claim.
Now, if you go to litigation and you come into the U.S. District Court every time the man says, “Well, the chief officer didn't allow my overtime.”
You'll have a lot of cases.
You'll also have lack of uniformity and resolution because the men in the Union and in the Company offices are very familiar with the ships and their operations.
And the conditions under which his claims may arise.
Unknown Speaker: Mr. Sullivan, should I detect in this record a reference of this man to the Union's agent in Japan?
Mr. George W. Sullivan: Yes, he did.
Unknown Speaker: Is this a fact in and of itself indicative of the desirability of such statute?
Mr. George W. Sullivan: Mr. Arguelles, the respondent in this case returned to Galveston which was at port of Saigon.
If I understand, his testimony in the pre-trial deposition ordinarily signed the ship out of Baltimore.
And in going to the Union agent, in Galveston, I think the first problem perhaps was to resolve this question of the restriction to ship and whether it was justified and the best man to determine is, are given the information on the conditions of Saigon and that this anchorage where the ship was held would be the Port Agent in Yokohama.
Now, in writing to him, they would get perhaps an authoritative expression on whether the restriction of the ship was in fact a condition of matter and whether the basis of his claim that he was entitled to eight hours a day overtime for those 11 days when they couldn't get off the ship was justified.
The idea of him writing to the agent would allow an opportunity for the reply from Japan come back to Mr. Arguelles at Baltimore.
He apparently not living in Galveston and not regularly shipping out of Galveston made it base of operations in Baltimore.
And in any event, under that Article II, Section 2 of the collective-bargaining agreement that he was dissatisfied with that advice, it says as you read down that he was entitled to a further merit of the Head Office of the Union if he didn't want to follow the advice of the agent in Galveston which apparently he didn't do, but he didn't do anything else.
He went back Baltimore.
He engaged counsel and ultimately brought this law suit which gave rise to the problems we have here.
Now, again, I go back to the decisions of this Court in similar problems in other industries and it seems that in the following the provisions of the Labor Management Relations Act of 1947 Section 301 (a) that it is desirable to have these things resolved between the companies and the Union in accordance with their contract.
And I think perhaps one thing that disturbed the Fourth Circuit more than anything else was the time-honored concept that it seems is award of the (Inaudible) and therefore a person to be protected.
But in these instances you have on one side a very powerful Union.
You have a very effective labor management relations system working in the maritime industry and it seems that at least to make an exception in this type situation to let the parties to the agreement endeavor to work this out and I think they're best qualified to do so.
Now, as in the Maddox case and the Vaca versus Sipes case decision to this Court, it was suggested that the effort they made to resolve in the court's grievance procedure before litigation would be resorted to and perhaps, that is what you had mind Mr. Justice Blackmun that did he get a fair treatment, adequate treatment to the hands of his Union.
I think what he did here; he didn't give the Union really a chance to take the matter up.
I think he just dropped it when he said, right Yokohama, he didn't take any further and I think he should've.
He eventually engaged counsel and the counsel was certainly been qualified to take the matter up form with the Union and that wasn't done instead he started a lawsuit.
And really in granting summary judgment to District Court, I think the District Court judge reach the conclusion, there is really no dispute on this point that he didn't pursue the grievance and arbitration procedures that's why to summary judgment was justified.
Now, today again with shipping industry operating all over the world, men leading ships engaged in foreign ports.
I think uniform procedures are most important and you should have a system on which everyone may rely and expect to have a certain amount of predictability in the result which is why it becomes important.
I believe, to follow the grievance procedure and the arbitration procedure set up in the agreement.
This is what they wanted to do and this is what would best serve the needs of the industry generally.
We're trying to strengthen our American Merchant Marines what remains important factor.
Mr. Gibson, the Secretary of State for Commerce recently at the International Labor Organization meeting in Geneva was quoted to saying, “That the American seaman today enjoy the highest wages of all seaman in the world and have better living conditions and working condition on the ship because the free atmosphere of collective-bargaining.”
I think it's a desirable result to uphold the agreement and that basis which the parties of the agreement wanted to utilize to resolve their differences.
Litigation is always there as the last resort, but really that's what it should be a last resort, first effort should be made.
Chief Justice Warren E. Burger: Mr. Avnet.
Argument of I. Duke Avnet
Mr. I. Duke Avnet: Mr. Chief Justice and may it please the Court.
I would like just to say a few additional facts here before going in the argument.
I would like to point out that the statute provides that in the foreign voyage, the seaman is entitled to be paid off within 24 hours after the cargo was discharged or within four days after he is discharged and for not doing so, the ship is liable for two days' pay for each day of delay.
I beg your pardon sir?
Chief Justice Warren E. Burger: That was no question.
Mr. I. Duke Avnet: And that the wages should be recoverable “as wages in any claim made before the court.”
Then there's another Section 597 which provides that were a seaman asked for a draw in any port, he must be paid a portion of his wages due, a third, otherwise the whole amount becomes due and he entitled to be discharged.
Now, in this case Mr. Arguelles, the seaman went first to Saigon during the six-month period of the shipping articles, and then went back to Taiwan to take on another cargo and the six months was about to expire.
And one day before the six-month period that is on February 2, 1966, Mr. Arguelles asked the Captain to be discharged.
The Captain said, no and he said, “Well I'd like my draw” and the Captain said, “no.”
Reading between the lines, it is obvious here that the Captain did not wish to lose Mr. Arguelles and intended to keep beyond the six-month period of his articles knowing that by the time the ship drop to Saigon or near Saigon that the six months would have be expired and it's still have the services of Mr. Arguelles even though Mr. Arguelles no longer want to serve beyond the six-month period.
I like to point out it's not a case of man who didn't want to go to Saigon, the thing he agreed to do he and already been there, but because the articles were about to expire he won't get off the ship and get paid.
When the vessel arrived in Cap St. Jacques which was on the third, the day the articles expired, he again asked to be discharged and be paid off and again it was refused.
Now, assuming that the ship was not granted clearance that is that the crew was not granted surely, there was no objection apparently to the agent coming aboard with an American counsel if necessary so that the man who want to get paid off and his articles had expired could be paid off, but the Captain didn't want that.
Apparently, reading between the lines, he wants to keep that crew on that ship or maybe it's because he couldn't get replacements or was difficult to get replacements.
But be that is not made this violated the articles so far as Mr. Arguelles is concerned because he was there only on six-month articles and there were forced of keeping him there beyond that.
Well, therein we're confined that the ship then in that Cap St. Jacques for period of some 10 or 11 days and finally the ship was moved up the river toward the port of Saigon, the harbor of Saigon.
Chief Justice Warren E. Burger: Let me ask you this by the way.
Mr. I. Duke Avnet: Yes, sir.
Chief Justice Warren E. Burger: If the six months expiration date comes at the time they are in the foreign court, does the seaman have a right to insist upon the extending the articles until he is at his home port or can the master of this vessel terminate the men in there?
Mr. I. Duke Avnet: The usual procedure on a risk for the man to decide whether he want to continue on and then he resigns articles or if he decided he doesn't want to continue on then he is paid off right there and the Captain replaces him with someone else.
Chief Justice Warren E. Burger: Well, suppose he wants to stay on, but the Captain wants to terminate him and my question is, may he be terminated in a foreign port?
Mr. I. Duke Avnet: I would think so.
Chief Justice Warren E. Burger: Sure --
Mr. I. Duke Avnet: Because the article says, it's only for six months.
Justice Potter Stewart: What if the six months period ends when the ship is in the middle of the Pacific Ocean?
Mr. I. Duke Avnet: Then of course, it's a practical measure, he would be continued on until they reach the next port and then be paid off of that next port.
Well, when the vessel arrived then in Saigon, now this is on the 13th of February.
Again, he asked to be discharged and be paid off and again he was refused, that being the obvious intention of the Captain to keep him aboard their regardless of the articles and regardless of what his wishes were.
Finally, it was on the 17th that Mr. Arguelles was finally permitted to leave the ship and then instead of being paid in American dollars as the law requires that he was paid by simply a voucher and given $50 and the answer was given not there but here.
Later on, that was their policy not to do it.
Now, there's no proof that there was any law that forbade the payment in American dollars in Saigon.
There's no proof in the record at all.
On the contrary, Mr. Arguelles testified and that's the only testimony we have here, direct testimony namely that he thought he was entitled be paid all fairness, prompted an argument between him and the American Consul and some of the other seamen that wish to paid off.
Then they flew him to the States and there he had to wait for approximately three days before the company decides to pay him off.
Now, the evidence is clear contrary to what my brother has stated that he waited there to be paid.
He didn't wait around and go direct to draw to the office.
He was not paid by the company until the 22nd when the others were paid off.
Now, these were the facts in the case and then the man said, “You haven't to pay me all of my overtime.”
They said, “Well, you have to go to your Union, he went to his Union.
The Union says, you go to Yokohama, now of course this is the futile thing for him to do, he couldn't negotiate to with Yokohama or the delegate there and contrary to what my brother says, it is the job of the Union to take the matter off on a higher level if there has -- the grievance has not been settled in the local port.
Now, grievance, the contract says, must be settled in an American Continental port or in the final port of discharge here being Houston, or that American Continental port which would have been also Houston.
Now, this is where it should have been settled, but it wasn't settled here and that was for the Union to take it up but not this man because this man wasn't getting any relief from this Union and therefore he came to me and after I wrote to the Company trying to get them to pay the man, they refuse and I finally took it to court.
Now, these are the facts in the case, may it please the Court.
Chief Justice Warren E. Burger: I think that you're emphasizing these facts on the theory that this is the kind of the recall sequence that statute was intended to penalize?
Mr. I. Duke Avnet: Exactly, Mr. Chief Justice and to answer now Justice Stewart's question it is true that the amount of the overtime, the rate of the overtime is fixed by the collective-bargaining contract, but the remedy Your Honor is given by the statute.
And this is --
Justice Potter Stewart: [Voice Overlap] a remedy is also given by the collective-bargaining [Voice Overlap]?
Mr. I. Duke Avnet: Yes, sir.
He has two remedies --
Justice Potter Stewart: And that's the issue before it.
Mr. I. Duke Avnet: That's correct sir and the question arises therefore whether the collective-bargaining remedy is a mandatory substitute for the statutory remedy.
We say no, we say the man could pursue either one of the remedies.
Now, Mr. Justice Blackmun has significantly pointed out that just precisely to overcome an abuse such as occurred here and that is where the Union subjects the man who are futile -- to a futile result.
That is to try to contact that region in the foreign port that in that kind of a contingency, the man should be permitted to go to court and get relief which is guaranteed by that statute.
And of course that statute is in the interest of making and building a strong merchant marine for the defense of the contrary and for a solid, a mercantile development in our country with regard for merchant marine as was indicated by this Court in a decision written by this Court fairly reasonably which I cited in my brief.
Unknown Speaker: How long is the statute been on the books?
Mr. I. Duke Avnet: The statute originated --
Unknown Speaker: (Inaudible)
Mr. I. Duke Avnet: The statute originated Mr. Justice about 1790 and there was amended about 1915 in its present form and this has been the policy this statute was based of course upon policy to have a strong merchant marine dating from the back -- back of day of the revolution.
I would like to point out now at this point that Mr. Sullivan, my opponent is arguing that there's no need now for this type of statute because the American seaman are much better of than they were a century ago.
I don't argue with him that they are better off now and that that is due to the collective-bargaining machinery.
However, it is not is in his good situation that's counsel would had you believed.
Today, the passenger vessel trade for -- there's American passenger vessel trade as very much off, this people are having difficult times which means and that seaman may be subjected to delay in payment of their wages or nonpayment.
We have a number of marginal shippers in the merchant marine today, people owning one ship or two ships who are making their profit through trade in the Saigon run.
Now, where unwinding of that war, at the end of that war obviously, these small companies are going to be in financial restraints.
And these seamen then will suffer as consequence because they will be delay in payment and which will mean no payment at all eventually.
And so, it isn't important to have this two for one specter facing the shipowner or ship operator so that he will know that those wages must be paid promptly in order to encourage these men to go the sea.
We're having a number of mergers today and people don't let know who their employer is and in this instances there are delays and none payment of wages compelling the men to go to the court under the statute.
Justice Potter Stewart: When you think that the grievance machinery itself could take account of the statute and give the man what the statute gives him and that his double pay for any wages wrongfully was held 100% penalty for each day that was wrong, wrongfully withheld and that that could be done by the grievance machinery and that will give your clients another similarly situated much faster relief because generally speaking the grievance procedure works faster than a federal court case, doesn't it?
Mr. I. Duke Avnet: On the first place Mr. Justice Stewart, I don't think that the grievance machinery would necessarily work any faster because in this particular industry where you have the (Inaudible) involved being out at sea whether it be on the company side or in the workman side, these cases are long handling.
Now, until he gets parties together until he can be heard particularly in our arbitration case that takes a long time.
And this conserve with grumbling about this in the industry [Voice Overlap].
Justice Potter Stewart: But certainly it would have been faster in the federal court, was it?
Mr. I. Duke Avnet: Well, it yes, Your Honor because usually they don't go this long or this far.
They don't flock in United States Supreme Court, they usually terminate [Voice Overlap].
Justice Potter Stewart: No, but if a man is in Japan he can hardly be a witness in the Federal District Court in Baltimore either [Voice Overlap].
Mr. I. Duke Avnet: That's correct.
Justice Potter Stewart: And then he can be in its grievance procedure?
Mr. I. Duke Avnet: But they usually they end up in the District Court and doesn't grow up on appeal.
To answer your other question Mr. Justice Stewart, it is true that an arbitrator could do that but is impose of penalty of 241, but I have never seen it done and it's very unlikely that the arbitrator would do that.
There's nothing in the grievance procedure that would require them to do that.
Justice Hugo L. Black: Suppose he didn't do it, what would happen?
Mr. I. Duke Avnet: He didn't do what Mr. Justice Black?
Justice Hugo L. Black: Or he didn't take account of it what you're talking about?
Mr. I. Duke Avnet: You mean the arbitrator?
Justice Hugo L. Black: Yes.
Mr. I. Duke Avnet: If he didn't -- you mean recognize the grievance of the seaman?
Justice Hugo L. Black: Yes.
Mr. I. Duke Avnet: And then the Saigon's favor then the court a seaman wouldn't get anything and that he'd come away empty handed [Voice Overlap] and that would be controlling.
Chief Justice Warren E. Burger: [Voice Overlap] part of that state?
Mr. I. Duke Avnet: I doubt could then Mr. Justice -- Chief Justice because if he did then there would be nothing due him because he had agreed to go into the arbitration proceeding.
Chief Justice Warren E. Burger: Does the grievance procedure and the arbitration operates to have power of subpoena?
Mr. I. Duke Avnet: Not that I know of.
Chief Justice Warren E. Burger: So, that if the employer wanted to engage in dilatory tactics and not having there master or others available or didn't want to take their depositions they could delay at an arbitration that could be longer than you could do it in federal court by the power of subpoena.
Mr. I. Duke Avnet: That's correct sir.
And so I think Your Honors that discuss to leave the law as is and if they want to substitute the collective-bargaining remedy for the statute, I think the place to do that is in the Congress and not to come here and ask Your Honors to do that and I think it's solitary that we have both remedies so that the seaman can choose which one he wants.
Chief Justice Warren E. Burger: Thank you.
You have about two or three minutes left if you wish.
Rebuttal of George W. Sullivan
Mr. George W. Sullivan: Well, if I may then I would like to say something.
The facts of the case in so far as lining with the 596 and the pay off, there was really -- we've always contended on the merits.
There was no delay in this case.
The statute provides that the payment of wages assuming that we're talking about everything that is concededly due to the man may be made within four days after the discharge or within 24 hours after cargo has find to discharge in the vessel.
Now, Mr. Arguelles and this is in his deposition which is set forth on that [Voice Overlap].
Chief Justice Warren E. Burger: But we -- you're not suggesting, we try to re-determine the facts here.
Mr. George W. Sullivan: No, Your Honor, I'm not but they made the certain illusion that it was on the company agent's, a dilatory tactic that he wasn't paid properly in Galveston.
Actually, he was in Galveston the 19th based on his testimony and he didn't go the company's agent's office on the -- on his own.
He took the time himself rather than go over there.
He could've been paid off within 24 hours that the cargo was out of the vessel.
The cargo was completely discharged on the 18th at Saigon.
Chief Justice Warren E. Burger: Very well, thank you Mr. Sullivan.
The case is submitted.