The opinion of the court was delivered by: BYERS
On February 21, 1940, a libel was filed in this court under the above title to recover seamen's wages, and the schedule attached thereto gave the names of the chief officer, 2nd, 3rd and 4th officers, chief engineer, 2nd and 3rd engineers, and wireless officer.
On February 27th, an affidavit verified February 26, 1940, and notice of motion were filed on behalf of the claimant, asking the court to decline to take jurisdiction in the cause, and to dismiss the libel, which recited that the ship is a Yugoslavian tramp steamer, and that some of the libelants originally joined the vessel in Yugoslavia, and that she arrived in Rotterdam in August, 1939, to undergo repairs, and that the balance of the libelants joined her there on September 26th.
That, while she was in that port, the Yugoslav Government decreed that all vessels flying the flag of that nation must immediately double the wages paid in all classifications plus an additional bonus for every day the vessel operated in the war zone (north of Gibraltar and east of the 20th meridian). That at the time the vessel sailed from Rotterdam all libelants were at liberty to return home at the expense of the vessel if they did not wish to remain with the ship, and that the articles signed at Rotterdam were for a period of one year, the vessel to go where her business might take her.
That, the vessel being loaded in this port on February 15, 1940, and ready to sail, fourteen members of the crew (who are the libelants in this action) refused to sail the vessel and held her at her berth.
That, upon the filing of the libel, the claimant deposited sufficient security in the Registry of this court to secure the release of the vessel, but the libelants refused to leave her, and so continued in possession until force was used to bring about surrender on February 24, 1940.
It was averred that the claimants are unable to pay off any alien employed on any vessel arriving in the United States from any foreign port or place, pursuant to the provisions of Title 8 U.S.C. § 168, 8 U.S.C.A. § 168.
The request was made that the court would decline jurisdiction because the contract was one of Yugoslavia, made before a Consul of that country, on a vessel of that country, flying that flag, and therefore governed by the law of Yugoslavia.
An answering affidavit was filed on February 28th by the proctor for the libelants, and five additional seamen were asked to be joined. That affidavit states that, on February 21st the libelants had asked for half wages, which the master refused, whereupon an amended libel was filed, for the purpose of bringing the cause within the contemplation of Title 46 U.S.C. § 596, 46 U.S.C.A. § 596.
It is apparently the position of counsel that these libelants signed on during peace time, and that the subsequent breaking out of the war in Europe, and the purpose of the vessel to enter the war zone, entitle them to discharge under article 69 of a statute or law of Yugoslavia, a translation of which is embodied in the said affidavit.
The only applicable provision thereof reads: "If the ship changes its route and this seriously endangers the life or health of the seaman", he "may request the port authority or the Consular authority respectively to be immediately disembarked", in which case he must be sent either to his country or the place of embarkation; the expense involved is to include disbursements for transportation, lodging and meals.
That affidavit contains no express denial of the averments in the claimant's affidavit that the articles were signed in Rotterdam for one year, and that the sailing did not take place until on or about September 26, 1939, after the war in Europe had broken out, and that the libelants were then at liberty to return to their native country but preferred to remain with the ship.
An affidavit was filed on February 28, 1940, by D. M. Stanoyevitch, who recites that he is the Consul General of the Kingdom of Yugoslavia in New York, and he quotes a statute of his country entitled Act of Maritime Authority No. 3397 of May 6, 1920, as the basis for his request that jurisdiction be declined on the ground that this dispute is "one which is the sole concern of my Government and the competent Authorities in Yugoslavia".
The statute is to the effect that pending disputes on a Yugoslav merchant vessel between the shipmaster and officers or seamen have to be submitted to the nearest Consular office, where an effort shall be made to arrive at a peaceful settlement; if the dispute is not settled by agreement or if the Consular decision is deemed to be unjust, either party is entitled to make application, on return to the home port, to the competent port Authority for final settlement. Appeals in such matters to foreign port authorities or other ...