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KORINIS v. SEALAND SERVS.

June 2, 1980

JOHN K. KORINIS, Plaintiff, against SEALAND SERVICES, Inc., Defendant.


The opinion of the court was delivered by: WERKER

This action was commenced by the plaintiff John K. Korinis, a seaman, against the defendant Sea-Land Service, Inc., sued herein as Sealand Services, Inc., and is before the Court on the defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56.

FACTS

 The relevant facts, for purposes of this motion, are as follows. *fn1"

 At all relevant times, plaintiff was a member of the Masters, Mates & Pilots Association (the "Union"). He was assigned to work as a second mate aboard the SS Oakland on July 17, 1978 at the Union's New York hiring hall. On the evening of July 17th, he flew to London and arrived in Rotterdam the following afternoon. He reported to the defendant's agent in Rotterdam that day, and boarded the vessel the following day. The defendant contends that the plaintiff was not required to travel until July 18, 1978, and that the plaintiff left on July 17th by his own choice. The plaintiff, however, denies that he was instructed by the defendant to fly to Rotterdam on the 18th.

 At the time the plaintiff joined the SS Oakland, articles had already been opened for a voyage then in progress; the plaintiff replaced another second mate aboard the vessel. The voyage continued until September 12, 1978, at which time the articles were closed and the members of the crew, including the plaintiff, were paid for their services. Plaintiff was not paid for July 17, 1978, and an excess sum of $ 1,441.13 was erroneously withheld from his wages for withholding taxes. The $ 1,441.13 was paid in February 1979, prior to the commencement of this lawsuit. Additionally, after the commencement of this action, plaintiff was tendered $ 140.66 to cover his wages for July 17, 1978; defendant, however, apparently intends to counterclaim to recoup the one day's pay.

 After the pay-off at Rotterdam on September 12, 1978, new articles were opened. During the subsequent voyage, the plaintiff allegedly worked a number of overtime hours. On December 19, 1978, plaintiff was discharged for treatment of a duodenal ulcer. At that time plaintiff was paid his wages, but did not receive payment for the overtime. Because of difficulties in obtaining passage to the United States, plaintiff was asked and agreed to be hospitalized in Greece. He traveled to Greece at his own expense. On February 26, 1979, he was declared "fit for duty" by his treating physician. At that time he was paid unearned wages and maintenance and cure from December 19, 1978 through February 26, 1979. The articles under which plaintiff was employed did not terminate until April 12, 1979, and the voyage did not end until April 16, 1979.

 Plaintiff presently seeks (1) payment for overtime wages earned during the voyage commencing in September 1978, (2) liquidated damages pursuant to 46 U.S.C. § 596 for the unpaid overtime, (3) liquidated damages pursuant to 46 U.S.C. § 596 for the withholding of the one day's pay and the $ 1,441.13, (4) reimbursement for his airfare to Greece, and (5) payment for unearned wages from February 26, 1979 through the termination of articles on April 12, 1979.

 The defendant's motion for summary judgment is based on the following grounds: (1) the $ 1,441.13 withheld, albeit erroneously, for taxes does not constitute "wages withheld" within the meaning of section 596, (2) alternatively, the $ 1,441.13 was not withheld "without sufficient cause," (3) maintenance and cure are payable only until a seaman has been cured and unearned wages are payable only until the seaman is fit or the end of the voyage, whichever occurs first, (4) plaintiff failed to exhaust his contractual remedies as required by the applicable collective bargaining agreement, and (5) alternatively, the amounts withheld for overtime and for July 17, 1978 were not withheld "without sufficient cause" within the meaning of section 596.

 DISCUSSION

 The collective bargaining agreement between the Union and the defendant contains grievance and arbitration provisions. Section XXXVI of the agreement provides that all disputes relating to the interpretation or performance of the agreement are to be resolved first, by a Licensed Personnel Board, and second, if necessary, by arbitration.

 It is well settled that an employee generally cannot bring suit against his employer for breach of a collective bargaining agreement until he has first exhausted any exclusive grievance and arbitration procedures established by the agreement. Vaca v. Sipes, 386 U.S. 171, 184, 87 S. Ct. 903, 913, 17 L. Ed. 2d 842 (1967). This exhaustion doctrine, however, does not apply to suits brought under 46 U.S.C. §§ 596, 597; seamen may sue for wages and liquidated damages under sections 596 and 597 without first exhausting any contractual dispute resolution procedures. U. S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 91 S. Ct. 409, 27 L. Ed. 2d 456 (1971).

 In the instant case, the plaintiff did not exhaust the exclusive grievance and arbitration procedure established by the collective bargaining agreement. His claims that do not fall within the scope of sections 596 and 597 are therefore barred by the exhaustion doctrine.

 Section 596 of Title 46 provides:

 
The master or owner of any vessel making coasting voyages shall pay to every seaman his wages within two days after the termination of the agreement under which he is shipped, or at the time such seaman is discharged, whichever first happens; and in case of vessels making foreign voyages, or from a port on the Atlantic to a port on the Pacific, or vice versa, within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens; and in all cases the seaman shall be entitled to be paid at the time of his discharge on account of wages a sum equal to one-third part of the balance due him. Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the ...

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