'Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished, by the proper authorities of the local jurisdiction.'
To summarize the basic theory, matters relating to the peace of the ship or those on board, are to be dealt with exclusively by the sovereign of the home of the ship, while disturbances of the peace generally may be suppressed and the offenders punished by the local authorities. While this doctrine relates to the enforcement of the criminal law, the same principles would seem to be applicable to civil affairs. Although the principle is clear, it is not always easy or simple to draw the line and to determine on which side any particular transaction may fall.
The converse of the situation presented in Wildenhus's Case, was confronted in two later decisions of the Supreme Court. In Wildenhus's Case a crime committed on board a foreign merchant ship in an American harbor, was deemed punishable by American courts if it disturbed the peace of this country. In United States v. Rodgers, 150 U.S. 249, 14 S. Ct. 109, 37 L. Ed. 1071, and United States v. Flores, 289 U.S. 137, 53 S. Ct. 580, 77 L. Ed. 1086, it was held that an American seaman committing a crime on board an American ship, while the ship was either in foreign territorial waters or in a foreign harbor, could be brought back to the United States and tried in a Federal court. The first of these two cases applied this doctrine to an assault with a dangerous weapon committed on board an American ship by an American seaman while the ship was proceeding through Detroit River, which was within the territorial waters of Canada. The second went so far as to sustain criminal jurisdiction of a Federal court over a murder of an American citizen by another American citizen aboard an American ship while at anchor in a port in the Belgian Congo. This conclusion was reached in spite of the fact that at the time of the commission of the offense, the ship was attached to the shore by cables at a point two hundred and fifty miles inland from the mouth of the Congo River. Attention has been called to these few decisions in order to indicate the uncertainties of the subject and the vagueness of the limitations on the authority of the United States in respect to foreign merchant ships from the point of view of constitutional and international law, as well as from the standpoint of comity and policy.
It seems proper to commence a consideration of the specific problem that confronts the Court in this case with a reference to the treaty between the United States and Honduras 'of Friendship, Commerce and Consular Rights', signed on December 7, 1927, and proclaimed on July 23, 1928, 45 Stat. 2618. Article X of the treaty provides as follows (45 Stat. 2625):
'Merchant vessels and other privately owned vessels under the flag of either of the High Contracting Parties, * * * shall, both within the territorial waters of the other High Contracting Party and on the high seas, be deemed to be the vessels of the Party whose flag is flown.'
Article XXII, 45 Stat. 2634, provides, in part, as follows:
'A consular officer shall have exclusive jurisdiction over controversies arising out of the internal order of private vessels of his country, and shall alone exercise jurisdiction in cases, wherever arising, between officers and crews, pertaining to the enforcement of discipline on board, provided the vessel and the persons charged with wrongdoing shall have entered a port within his consular district. Such an officer shall also have jurisdiction over issues concerning the adjustment of wages and the execution of contracts relating thereto provided the local laws so permit.'
It may be emphasized that this treaty expressly reserved to the country under whose flag a ship sailed, jurisdiction over adjustment of seamen's wages and contracts relating thereto.
The pertinent statutory provisions that define the power and authority of the National Labor Relations Board are found in the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq. In 29 U.S.C.A. § 159, it is provided that:
'Representatives designated or selected for the purpose of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rate of pay, wages, hours of employment, or other conditions of employment: * * *.
'(c) (1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board --
'(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in subsection (a) of this section, * * *. 'the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. * * * If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.'
The terms 'commerce' and 'affecting commerce' are defined in 29 U.S.C.A. 152, subsections (6) and (7), as follows:
'(6) The term 'commerce' means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country.
'(7) The term 'affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.'
The phraseology of the statute is sweeping and comprehensive. It contains no restrictions, limitations, or exceptions. There are instances, however, in which a statute is not to be construed literally if such an interpretation would defeat the legislative intent. There are certain canons of statutory construction that serve as guides and aids in determining the intent of the Congress and the meaning of statutes. These precepts must be considered and given appropriate weight depending upon the circumstances of each case.
First, if there are two possible constructions of a statute, one of which may give rise to a constitutional question while the other would not create such a problem, the latter should be preferred, Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 76 L. Ed. 598; I.C.C. v. Oregon-Washington R. & Nav. Co., 288 U.S. 14, 40, 53 S. Ct. 266, 77 L. Ed. 588. To be sure, in the case at bar the plaintiff does not raise any constitutional issue but relies solely on what it urges to be the proper construction of the statute, -- else it necessarily would have applied for the convening of a three-judge statutory court. Nevertheless, such a question lurks in the background and its probable presence may well be weighed by the court in determining how the statute should be interpreted.
If at all possible, any construction of a statute that would be violative of the principles of international law should be avoided. Thus, Mr. Chief Justice Marshall had occasion to observe that, 'an Act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains', The Charming Betsy, 2 Cranch 64, 118, 2 L. Ed. 208.
An Act of Congress, no matter how universal the scope of its terms may be, will ordinarily be confined in its operation and effect to the territorial limits of the United States, unless the contrary intention is clearly and affirmatively expressed. American Banana Co. v. United Fruit Co., 213 U.S. 347, 357, 29 S. Ct. 511, 53 L. Ed. 826; Sandberg v. McDonald, 248 U.S. 185, 195, 39 S. Ct. 84, 63 L. Ed. 200; Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S. Ct. 575, 93 L. Ed. 680; Air Line Dispatchers Ass'n v. National Mediation Board, 89 U.S.App.D.C. 24, 189 F.2d 685, 690.
Repeals by implication are not favored. In other words, a statute will not be construed to repeal by implication an earlier enactment if it is at all possible to reconcile both. A fortiori this principle applies when there is an apparent inconsistency between an Act of Congress and an earlier treaty. If at all feasible the Act of Congress will be so interpreted and applied as not to affect the provisions of the treaty. Chew Heong v. United States, 112 U.S. 536, 549, 5 S. Ct. 255, 28 L. Ed. 770; Cook v. United States, 288 U.S. 102, 121, 53 S. Ct. 305, 77 L. Ed. 641; Pigeon River Improvement, Inc. Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160, 54 S. Ct. 361, 78 L. Ed. 695. In the Cook case, supra, it was said that 'A treaty will not be deemed to have been abrogated or modified by a later statute, unless such purpose on the part of Congress has been clearly expressed'.
The literal meaning of a statute may not be followed and applied in such a manner as to produce an absurd result or one that is unreasonable and plainly at variance with the policy of the legislation as a whole. To avoid such a consequence, the courts will at times imply limitations and exceptions in a statute that the legislative body has not inserted. Thus it was said in Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S. Ct. 511, 512, 36 L. Ed. 226:
'It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers. * * * This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, make it unreasonable to believe that the legislator intended to include the particular act.'
Among the many cases holding to the same effect, are United States v. Kirby, 7 Wall. 482, 486, 19 L. Ed. 278, and United States v. American Trucking Ass'ns., 310 U.S. 534, 542, 60 S. Ct. 1059, 84 L. Ed. 1345. In the Kirby case, it was stated (pp. 486-487 of 7 Wall.):
'All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.'
It may be helpful to consider the construction and application of other Acts of Congress to foreign merchant ships entering American ports. For example, it was held that an Act of Congress prohibiting the making of advances of wages to seamen, did not apply to a foreign ship with a foreign crew putting in at an American port, if the advances had been made outside of the United States. This result was reached in spite of the fact that the statute contained no such exception, Sandberg v. McDonald, 248 U.S. 185, 39 S. Ct. 84, 63 L. Ed. 200. On the other hand, a law entitling seamen to receive one-half of accrued wages in every port that the ship entered, was held applicable to foreign ships while in an American port in respect, however, only to wages that had accrued. Strathearn S.S. Co. v. Dillon, 252 U.S. 348, 40 S. Ct. 350, 64 L. Ed. 607. It will be observed that the last mentioned case involved an action required to be performed in the United States, while the former held the statute inapplicable to activities that took place abroad.
The National Prohibition Act was held applicable to foreign merchant ships while in American ports. Cunard S.S. Co. v. Mellon, 262 U.S. 100, 43 S. Ct. 504, 67 L. Ed. 894. The Government, however, did not attempt to prosecute personnel of such a ship for having intoxicating liquor on board, as perhaps a literal construction of the statute might have permitted. The Government merely insisted on requiring that such liquor be sealed while the ship was in an American port. This contention of the Government was approved by the Supreme Court.
The Eight Hour Law (40 U.S.C.A. 321 et seq.) governing employment on Government contracts was held inapplicable to Government work performed in a foreign country, even though the statute the terms 'every contract' and included no exceptions, Foley Bros. v. Filardo, 336 U.S. 281, 69 S. Ct. 575, 93 L. Ed. 680.
The Jones Act (46 U.S.C.A. § 688) governing the rights of seamen to recover damages for personal injuries incurred in the course of employment, was held inapplicable to a member of the crew of a foreign ship who was injured while in a foreign harbor, Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254. Again, no express exception was included in the statute. In the course of his opinion, Mr. Justice Jackson stated (p. 582, 73 S. Ct. p. 928):
'But in dealing with international commerce we cannot be unmindful of the necessity for mutual forbearance if retaliations are to be avoided; nor should we forget that any contact which we hold sufficient to warrant application of our law to a foreign transaction will logically be as strong a warrant for a foreign country to apply its law to an American transaction.'
The question whether the Labor Management Relations Act of 1947 applies to foreign vessels operated by foreign seamen shipped under foreign articles, while the vessel is temporarily in an American port, was answered in the negative in Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S. Ct. 699, 1 L. Ed. 2d 709. That case involved a ship that sailed into harbor at Portland, Oregon. It was flying a Liberian flag and was owned by a Panamanian corporation. The crew was made up entirely of nationals of foreign countries, who had signed a British form of articles of agreement at Bremen. While the ship was at anchor at Portland, members of the crew went on strike and picketed the vessel. They designated the Sailors' Union of the Pacific as their collective bargaining representative. The picketing was eventually stopped by an order of the court. An action for damages against the Union was filed by the owners of the vessel. The defendants urged that the trial court was without jurisdiction, on the ground that the Labor Management Relations Act had preempted the field. This contention was overruled and it was held that this statute was not applicable. The court indicated that it was not the purpose of Congress to resolve labor disputes between nationals of other countries operating ships under foreign laws (pp. 142, 143, 77 S. Ct. pp. 701, 702). The Court further stated that in order to construe this statute as applicable in such a delicate field of international relations there had to be present the affirmative intention of the Congress clearly expressed (p. 147, 77 S. Ct. p. 704).
This decision would seem to be dispositive of the issue presented in the case at bar, were it not for the contention advanced by counsel for the defendants and counsel for the intervenor that it was overruled, or at least limited, by the subsequent ruling of the Supreme Court in Marine Cooks and Stewards, etc. v. Panama S.S. Co., 362 U.S. 365, 80 S. Ct. 779, 4 L. Ed. 2d 797. That case involved a Liberian ship manned by an alien crew, whose employment contracts had been executed outside of the United States. The ship put in at Tacoma, Washington, for the purpose of delivering cargo. Marine Cooks and Stewarts, AFL, an American Labor union, picketed the vessel. Its owner brought suit for an injunction against this activity. It was held that the Court lacked the power to issue such an injunction because of the prohibitions of the Norris-LaGuardia Act (29 U.S.C.A. § 101 et seq.), which precluded the granting of injunctions in labor disputes except under certain circumstances. Counsel argued that since the Norris-LaGuardia Act was applicable, the situation must have been deemed to involve a labor dispute within the meaning of the Labor Management Relations Act. This reasoning is, however, a non sequitur. There may indeed be labor disputes outside of the scope of that Act and beyond the jurisdiction of the National Labor Relations Board. The Court expressly referred to the Benz case and did not disapprove it or narrow it in any way.
Finally, reliance is placed on Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S. Ct. 140, 93 L. Ed. 76, in which it was held that the Fair Labor Standards Act (29 U.S.C.A. § 201 et seq.) covered employees of American contractors engaged in the construction of a military base for the United States in an area in Bermuda leased by Great Britain to the United States for ninety-nine years. The question determined by the Court, however, was solely whether the term 'possession' as used in the Act to define its geographical coverage, should be construed as comprizing a base leased by the United States in a foreign territory for a long term. This question was answered in the affirmative as against a vigorous dissenting opinion written by Mr. Justice Jackson and in which three other members of the Court concurred. The case has no bearing on the problem confronted in this case.
This Court, therefore, reaches the conclusion that the Labor Management Relations Act of 1947, should be construed as not conferring any authority or power on the National Labor Relations Board to conduct elections for collective bargaining purposes among foreign seamen manning vessels flying a foreign flag, and employed under contracts executed in a foreign country pursuant to foreign law. The fact that the corporation that owns the ship may be a subsidiary of an American corporation does not affect this result. Consequently the Board was without power or authority to issue the order directing the election in this instance.
Accordingly, the plaintiff's motion for a preliminary injunction is granted and the defendants' motion to dismiss the complaint is denied. Counsel may submit an appropriate order.
This discussion would seem to lead to a final disposition of this litigation insofar as this Court is concerned. This is not possible, however, on the present state of the record, in view of the fact that the plaintiff has made no motion for summary judgment. No doubt this was due to the twenty-day limitation prescribed by Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., since the twenty-day period from the commencement of the action had not expired when the present motions were argued. As this period has now elapsed, the Court would entertain such a motion at this time.