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BOURNIAS v. ATLANTIC MARITIME CO.

January 15, 1954

BOURNIAS
v.
ATLANTIC MARITIME CO., Limited et al. THE ATLANTIC OCEAN



The opinion of the court was delivered by: CONGER

This matter was tried upon special issues raised by exceptive allegations to the amended libel and the reply to such allegations.

The libellant, a seaman, seeks recovery against the respondents, his employers, upon three causes of action.

The first is based upon the Labor Code of the Republic of Panama and in reality involves four different obligations: (a) for the legal indemnity due to crewmen where the registry of a Panamanian vessel is changed (Art. 127); (b) for vacation pay (Art. 170 as amended by Law No. 7 of Jan. 26, 1950); (c) for overtime pay (Art. 154) and (d) for Sunday and holiday pay (Art. 166).

 The second is based upon Sections 596, 597 and 599, Title 46 U.S.C.A. and involves purported illegal advances and withholdings in libellant's wages in December, 1948 and January and March, 1949.

 The third is based upon Sections 596 and 597 of Title 46 U.S.C.A. and involves a penalty of double wages for wages, not timely paid, sought in the first and second causes of action.

 The exceptive allegations set forth that the libellant terminated his employment on December 27, 1950 at which time the right to the sums sought in the first cause of action accrued; that the libel was filed on December 29, 1952, more than two years after the cause of action accrued; that the Panamanian Labor Code provides:

 'Article 621. Actions for dismissal of a workman for just cause prescribe (i.e. are barred by the statute of limitations) within two months; for imposing upon him any disciplinary penalty; for asserting claims for unjustifiable dismissals or against the imposition of a disciplinary penalty; and for justifiable separation from work.

 'Article 623. Actions and rights arising from labor contracts not enumerated in Article 621, shall prescribe (i.e. shall be barred by the statute of limitations) in a year from the happening of the events from which arise or are derived the said actions and rights.' *fn1"

 It is alleged, therefore, that libellant's first cause of action is barred by such provisions of the Panama Labor Code (Article 623). If this is so it follows that the third cause of action, which rests principally on the first, also is barred pro tanto.

 The respondents plead laches to the second cause of action upon which, if course, a part of the third depends.

 The libellant's reply in effect denies that his causes of action are barred by the Panama Labor Code or laches.

 Carlos Berguido, Jr., testified on behalf of respondents on the Law of Panama. He is a member of the Bar of Pennsylvania and was formerly Consul and Consul General of Panama in Philadelphia. Although he is not a member of the Panama Bar, he has frequently been called upon as an expert on International and Foreign Law, particularly Latin-American and is coauthor of various writings on the Panamanian Law, including, among others, 'Manual for Masters and Seamen on Ships under the Panamanian Flag', 'Supplement No 1' thereto, and 'Leyes Maritimas Panamenas.' His qualifications were not questioned by libellant.

 Berguido testified on direct examination that the Panama Labor Code (Codigo de Trabajo) became effective on March 1, 1948 and governs the rights of seamen on Panamanian ships; that Article 623 governs the time for commencing such an action as is alleged here, it being one of the class not enumerated in Article 621; that the provisions of Article 623 are a matter of substance and not of procedure.

 On cross-examination of Berguido, libellant's counsel used Berguido principally to approve translations of Panama law which counsel put in evidence without, for the most part, eliciting from ...


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