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December 19, 1958

AFRAN TRANSPORT COMPANY, Calendar Navigation Corp., California Transport Corporation, Carib Marine Company, Grand Bassa Tankers, Inc., Hemisphere Transportation Corporation, Kupan Transport Company, Mobil Tankers Company, S.A., Norness Shipping Company, Inc., Panama Transport Company, Seatankers, Inc., Tanker Transport, Inc., Theater Navigation Corp., Trans-Atlantic Navigation Corporation and Universe Tankships, Inc., Plaintiffs,
NATIONAL MARITIME UNION, an unincorporated association; Seafarers International Union of North America, an unincorporated association; Joseph Curran, individually and as an officer and member representative of all the members of the National Maritime Union; and Joseph Algina, individually and as an officer and member representative of all the members of the Seafarers International Union of North America, Defendants

The opinion of the court was delivered by: BRYAN

Plaintiffs here are twelve Liberian corporations and three Panamanian corporations who operate some 128 vessels under Liberian or Panamanian flags and registry, transporting oil and other bulk cargoes from foreign to United States ports.

Defendants National Maritime Union (NMU) and Seafarers International Union of North America (SIU) are both international unions representing substantially all unlicensed seamen employed on American flag vessels. Joseph Curran, President of the NMU, and Joseph Algina, Assistant Secretary of the SIU, are also named as defendants. The Liberian and Panamanian Governments have been granted leave to file briefs as amicus curiae and have done so.

 The issues here revolve about plans of the defendant Unions, acting in concert with the International Transport Workers Federation (ITF), to carry out, beginning on December 1, 1958, what the plaintiffs call a boycott and what defendants' counsel term a peaceful protest against the ships operated by the plaintiffs coming into American ports. This is part of a similar plan of action to be carried out simultaneously in some 62 countries throughout the world by unions in those countries. The defendants concede that they intend to carry out their plans (1) by picketing the plaintiffs' ships and inducing other organizations to picket the ships while they are in any port in the United States; (2) by inducing their members who are employees of tugboats and other craft which service plaintiffs' ships, not to aid in the docking and servicing of plaintiffs' ships; and (3) by persuading other unions, including the Teamsters Union, the Oil and Chemical Workers Union, and other labor organizations, to refrain from handling cargo carried by the plaintiffs' vessels and from servicing such vessels.

 The complaint, in addition to allegations that plaintiffs are incorporated in Liberia and Panama respectively, and as to the status of the unions, alleges that the plaintiffs own many tank ships, documented under the laws of Liberia or Panama, which regularly carry large quantities of oil in foreign commerce between foreign ports and ports of the United States, constituting a substantial portion of the crude oil supply of the United States; that American oil refineries are to a substantial extent dependent on the regular and orderly flow of such cargoes, and that the ships require the assistance of tugboat, refinery workers and truckers in order to dock, discharge cargo and prepare for their return voyages. It goes on to allege that the unlicensed personnel of plaintiffs' ships are all foreign nationals, none being citizens of the United States; that no strike, labor dispute or controversy of any kind exists between plaintiffs and the personnel manning their ships; that defendant Unions have no collective bargaining agreements with plaintiffs, and have no authority to represent any of such personnel in collective bargaining, and are not eligible to do so under the laws of the United States. It then alleges that the defendant Unions have entered into a combination and conspiracy with the International Transport Workers Federation, a federation of labor unions, with its offices in Europe, to interfere with, obstruct and harass plaintiffs' ships in ports throughout the world in restraint of foreign commerce in violation of the Sherman Anti-Trust Act; that the Unions intend (a) to throw picket lines around the ships and the docks at which they berth beginning December 1, 1958, (b) to instruct members of their Unions employed by tugboats and other water craft not to service plaintiffs' ships when in port, and (c) to persuade other labor unions to picket plaintiffs' ships and to have their members refuse to aid in the unloading or servicing of plaintiffs' vessels.

 The complaint asserts that, unless restrained, the threatened actions of the defendants will cause irreparable damage to plaintiffs since plaintiffs' ships will be unable to reach or leave their docks to discharge their cargoes, to obtain provisions or to perform contracts for the transportation of their cargoes, and that plaintiffs have no adequate remedy at law.

 The complaint refers to a treaty of friendship, commerce and navigation between the United States and the Republic of Liberia under which Liberian nationals are permitted to have the liberty of freely coming to American ports and waters and shall be accorded the same treatment as United States vessels and cargoes, and Liberian corporations shall have free access to United States courts of law and equity.

 A second cause of action against defendants Curran and Algina, as officers and members of the defendant Unions is brought against them as representatives of their respective Unions under New York law. It is alleged that there is diversity of citizenship between plaintiffs and these defendants. The allegations of the first cause of action are in substance repeated, and it is alleged that the combination and conspiracy charged violate the law of the State of New York.

 The prayer for relief demands that the defendants, and those acting on their behalf and in concert with them, be restrained from engaging in the various acts complained of in the Port of New York or any other port of the United States.

 The complaint is supplemented by affidavits which in essence document the allegations of the complaint with respect to the threatened acts of the defendants. It is stated that the plaintiff corporations are primarily owned by leading United States oil and bulk carrier companies, and that these vessels under foreign registry and carrying so-called 'flags of convenience' are considered by the State and Defense Departments to be a valuable adjunct to the United States merchant marine in times of war or emergency. The affidavits say that the transfer of American vessels to the Liberian and Panamanian flags has been encouraged by the policy of the United States and that the vessels, many of which have been newly constructed in American yards, represent very large investments by American corporations. It is pointed out that industrial carriers are not eligible for the subsidies which are given by the United States to American flag liner operations in the foreign trade, a subsidy which amounted to some $ 120,000,000 in 1957. It is stated:

 'The subsidy is measured principally by the difference between foreign crew wages and American crew wages which are the highest in the world. Because of this all bulk cargoes, such as petroleum or ore, coming to the United States from overseas are transported to American refineries and mills largely by foreign flag ships.'

 It is stated that the unlicensed personnel of plaintiffs' vessels are aliens recruited in foreign countries, largely in Italy, and are employed under foreign articles. The wages and working conditions of such personnel aboard plaintiffs' vessels are said to be as high or higher than those of their European flag counterparts. The plaintiffs insist that there is no dispute or controversy between them and their personnel, numbers of whom are union represented.

 The defendant Unions state in their opposing affidavits that the objective of their protest is directly concerned with preserving the present wages and working standards of the merchant seamen on American vessels whom they represent. They say that their members have a direct stake in the wages and working standards of plaintiffs' employees since large numbers of American ships have been transferred to foreign registry to the detriment of American seamen with resultant loss of job opportunities.

 The defendants describe the 'flags of convenience' or 'flags of necessity' which these ships fly as 'runaway flags' and assert that they are a device by the American interests who control the plaintiff corporations to avoid the necessity of entering into American collective bargaining agreements with the crews of such vessels or the payment of American seamen's wages. It is stated, for example, that the Liberian merchant fleet, most of which is American owned or American financed, now totals almost 1,000 ships, totalling some sixteen million tons, and is the second largest merchant fleet in the world. It is alleged that more than 500 United States flag vessels have been transferred to Liberian registry since 1953, involving the loss of 16,000 jobs to American seamen, and that additional transfers will further impinge upon the job opportunities, wages and standards of their members. The defendant Unions have collective bargaining contracts with various oil companies who concededly are the parent corporations of these plaintiffs, and stress the danger of the depression of wages and working conditions enjoyed by American seamen through the much less expensive non-union wages and inferior working conditions aboard the vessels flying the so-called 'runaway flags'.

 Plaintiffs have moved for a temporary injunction restraining the defendants from carrying out their threatened plan of action pending the hearing and determination of this suit. *fn1"

 The plaintiffs' theory is that the actions of the defendants in concert with the ITF constitute a conspiracy in violation of the Sherman Anti-Trust Act to restrain the foreign commerce of the United States and irreparably to damage the plaintiffs in their business. The defendants, on the other hand, contend that their actions constitute merely peaceful protest and picketing in the course of a controversy arising out of a labor dispute which is free from any injunctive interference by the courts under the provisions of the Norris- LaGuardia Act and that, if any such relief is obtainable, it may be obtained only on application of the National Labor Relations Board pursuant to the Taft-Hartley Act.

 A brief discussion of the relevant statutory provisions is necessary in order to provide a setting for the legal problems presented.

 The statutes to be considered are the Sherman Act, 15 U.S.C.A. §§ 1, 15 note, the Clayton Act, 15 U.S.C.A. § 12 et seq., the Norris-LaGuardia Act, 29 U.S.C.A. 101 §§ 101 and the Taft-Hartley Act, 29 U.S.C.A. § 151 et seq.

 Section 1 of the Sherman Act (15 U.S.C.A. § 1 et seq.) on which plaintiffs rely is as follows:

 'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States or with foreign nations, is declared to be illegal.'

 It is unnecessary to review the history of the controversy engendered by the application of the Sherman Act to trade union activities and the resultant enactment of the Clayton Act in 1914. See United States v. Hutcheson, 312 U.S. 219, 61 S. Ct. 463, 85 L. Ed. 788.

 The Clayton Act (15 U.S.C.A. § 17) in substance withdrew from the interdiction of the Sherman Act various enumerated practices of trade unions but gave rise to new litigation and renewed ...

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