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December 6, 1954


The opinion of the court was delivered by: GALSTON

This libel sets up three causes of action:

The first alleges that the libellant was the operator of 'stick lighters', which lighters are accompanied by men called captains who are employed by the libellant for an eight hour day, beginning at eight A. M. and ending at five P. M. It is alleged that between January 1, 1947 and January 12, 1948 these lighter captains, at the request of the respondent, performed certain work, labor and services after the eight hour day work performed by the captains for the libellant. The libel then says that the captain kept a record of his work time, and had it checked and certified by the respondent. Then occurs a critical allegation of the libel, that the libellant, for the convenience of the respondent, advanced 'as is customary' the monies to pay such extra time; that the libellant rendered bills from time to time to the respondent for reimbursement of the monies so advanced. On January 24, 1948 respondent advised libellant by letter that it could not absorb said charges.

 The second cause of action alleges that the bills described in the first cause of action were rendered, never disputed, and became accounts stated.

 The third cause of action repeats the critical allegation set forth in the first cause of action, that the services for overtime hours were performed for the respondent in accordance 'with the established practice, and pursuant to the custom of the trade in the port of New York and at respondent's request.'

 Respondent's answer is a denial of all critical allegations of the libel.

 So this is a libel brought to recover $ 2,000, the sum alleged to be owed by respondent in connection with the overtime wages of the lighter captains.

 Respondent questions the Admiralty jurisdiction of this court over an action for recover based on unjust enrichment. The cited cases by respondent are, however, distinguishable, in that their subject matter, though stemming from a maritime transaction, were not of their own nature maritime. Here the subject matter is payment for the services of lighters and their crews, and is in essence a maritime issue.

 United Transportation & Lighterage Company v. New York & Baltimore Transportation Line, 2 Cir., 185 F. 386, 391, cited by respondent, was an action by a lighterage company to recover for services. The respondent set up a counterclaim, and filed a cross libel alleging that prior to the dates mentioned in the libel, libellant had been performing lighterage services for respondent at exhorbitant and unlawful, if not fraudulent, rates of pay. Such rates were alleged to be unlawful because they were agreed upon between an officer of libellant and an officer of respondent, who were father and son, the father being at the same time a stockholder and officer in both libellant and respondent, and the son being an officer and apparently a stockholder in libellant, and also an employee of respondent. The court, affirming a lower court dismissal of the cross-libel, held:

'The fundamental question is whether the general manager of the respondent corporation induced by his interest in the libelant corporation betrayed his trust. * * * this question is not maritime in its nature.'

 It is clear that the test the courts have applied is not the form of the action but the subject matter and questions involved. See Krauss Bros. Lumber Co. v. Dimon S. S. Corp., 290 U.S. 117, 124, 54 S. Ct. 105, 78 L. Ed. 216. Under that test this action falls within the jurisdiction of the Admiralty Court.

 Pontin is a firm which operates lighters in the port of New York. The lighters referred to in this case are the so-called 'stick lighters', non-motive powered cargo vessels, each equipped with a powered which. Each lighter carries a crew of one, referred to as the lighter captain.

 Pontin contracts with various firms and individuals to carry cargo on its lighters from the shipper's piers to the piers or to the ships of the various export steamship lines in the harbor. The contract price is based on a rate fixed by tonnage or the number of units. Pontin Picks up the cargo during the normal working day on the waterfront.

 The lighter captains have a labor union contract with Pontin which provides that during all loading and unloading operations the lighter captain must be present. The contract provides also that the captain is to receive overtime pay for all work performed after five P.M. Even in the absence of a contract, the captains would be entitled to overtime, as in 1945 the courts ruled that these men are within the provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., Anderson v. Manhattan Lighterage Corporation, 2 Cir., 148 F.2d 971.

 If the shipper requests that his cargo be picked up after normal working hours, he pays the overtime ...

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