Griffin v. Oceanic Contractors, Inc.

RESPONDENT:Oceanic Contractors, Inc.
LOCATION:A truck stop

DOCKET NO.: 81-614
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 458 US 564 (1982)
ARGUED: Apr 26, 1982
DECIDED: Jun 30, 1982

Robert A. Chaffin – on behalf of Petitioner
Theodore Goller – on behalf of Respondent

Facts of the case


Audio Transcription for Oral Argument – April 26, 1982 in Griffin v. Oceanic Contractors, Inc.

Warren E. Burger:

We will hear arguments next in Griffin against Oceanic Contractors.

Mr. Chaffin, you may proceed whenever you are ready.

Robert A. Chaffin:

Thank you, Your Honor.

Mr. Chief Justice and may it please the Court:

This is a case involving the interpretation of a very old seaman’s wage statute, a statute that had its origin first in 1790 and later came to be known as what is known now as the double wage penalty statute, which took its present form approximately in 1872.

That statute provides in essence, Your Honors, that if a seaman on a foreign voyage, such as the Petitioner was found to be by the trial court in this case, is not timely and properly paid his earned wages, those wages which are rightfully and uncontestedly due to him, one-third of those wages on the date of his discharge and the remainder within four days thereafter, that every master or owner who refuses or neglects to make payment without sufficient cause in the manner provided by the statute shall pay to the seaman a sum equal to two days pay for each and every day during which such delay shall continue.

Your Honors, that is the heart of the case here today.

In this particular case the trial court found uncontestedly that the seaman, the Petitioner, had been denied by the Respondent his wages, that he had made timely demand for his wages, and that even though demand had been timely made and with diligence he had pursued his demand, that the Respondent failed in an unreasonable manner, acted recalcitrantly, callously, willfully and wantonly and failed to pay the Petitioner his wages called for by the statute, Your Honor.

I got lost a little bit in the arithmetic here, counsel.

What was the… in dollars, what were the actual dollars he lost for the actual days, apart from all the penalty provisions?

Robert A. Chaffin:

Your Honor, if I may regress to the facts just a little bit, the Petitioner was actually due on his discharge $412.50, the amount of money which had been withheld from his pay check and was to be paid to him when he was discharged.

The actual facts are, Your Honor, that the Petitioner was at work as a seaman on board the Respondent’s vessel, which was the Lay Barge 27.

He received injuries which were due solely to an unseaworthy condition of that vessel.

He had to leave the vessel to have minor surgery and to recuperate from his injuries.

He left the vessel, Your Honor, on April the 1st of 1976.

At that time the Respondent had withheld from his paycheck $412.50 that was to be paid to him on the date of his discharge.

He was not paid that money, Your Honor, and when he was discharged in the port of Rotterdam the trial court found that the Respondent acted unreasonably, callously, willfully and wantonly in disregard of his rights to receive those wages.

Subsequently, the Petitioner attempted with due diligence, as the trial court found, to collect those wages, but was denied the wages, Your Honor.

Now, the real thrust of this case, Your Honor, is not the validity nor the applicability of this statute, but the size of the penalty which the statute carries with it.

If I may read to the Court the one sentence in the statute which I believe is the heart of the case, it reads, Your Honors:

“Every master or owner who refuses or neglects to make payment in the manner herein before mentioned without sufficient cause shall pay to the seaman a sum equal to two days pay for each and every day during which payment is delayed beyond the respective period, which sum shall be recoverable as wages. “

Mr. Chaffin, I gather he got a judgment of $23,670.

Robert A. Chaffin:

He did, Your Honor.

And of that, only $6,881.60 is penalty wages?

Robert A. Chaffin:

That is true, Your Honor.

And is that the only item in issue before us?

Robert A. Chaffin:

That is, Your Honor.

He was awarded damages for injuries and for maintenance and cure.

Maintenance and cure, prejudgment interest, attorneys fees and recovery for pain and suffering.

Robert A. Chaffin:

That is correct, Your Honor.

But isn’t the $5,000 recovery for pain and suffering and penalty wages?

Robert A. Chaffin:

No, sir, Your Honor.

The Respondent in this case has satisfied the judgment in full–

Except for the 68–

Robert A. Chaffin:

–He has paid the $6800 also, Your Honor.


Robert A. Chaffin:

The issue before this Court, Your Honor, is whether or not the trial court could exercise its equitable discretion to shorten the running of the penalty or to reduce the penalty to an amount which is below that called for by the plain and clear language of the statute.

I know.

But what I’m trying to get at is, the only item we have is the penalty wages of $6881?

Robert A. Chaffin:

That is the sole issue before this Court.


And you suggest that there’s an argument that it ought to be less.

How much less?

Robert A. Chaffin:

No, Your Honor.


Robert A. Chaffin:

I suggest that the position of the Court should be–

No, no.

Does your adversary say it ought to be less than $6881, nothing?

Robert A. Chaffin:

–Your Honor, he does not contest the $6880.

That has been paid in satisfaction of judgment.

The adversary, the Respondent here, my adversary, takes the position that the judgment of the trial court was correct.

The 23,000–

Robert A. Chaffin:

Yes, sir.

–odd dollars?

You say it should be more, is that it?

Robert A. Chaffin:

That’s correct, Your Honor.

What’s the figure, you suggest?

Robert A. Chaffin:

Your Honor, the figure that I suggest will come to something around $300,000 when you apply the statute exactly as written, the statute–

Mr. Chaffin, under your theory would it continue to run until this very day because it isn’t paid?

What about during the course of appeal?

Robert A. Chaffin:

–No, Your Honor.

That question was answered by this Court in the case of Pacific Mail against Schmidt in 1916, written by Justice Holmes, Your Honor.

The Court there held–

Do you interpret that holding as saying that the Court has discretion, then, not to give it during the appellate period?

Is that your interpretation?

Robert A. Chaffin:

–The direct holding was that the penalty would not run during what was there a good faith appeal, Your Honor.

I do not know whether–

Was that on the theory that the Court had discretion?

Robert A. Chaffin:

–The theory is not announced there or not stated to be discretion there, Your Honor.

It’s simply stated that… the Court simply stated, I believe, that it was not the intent of Congress there that that penalty should continue to accrue then.

But the literal language would not appear to admit for that distinction either.

So I’m wondering whether the Court may have discretion that goes back further.

Robert A. Chaffin:

Well, Your Honor, in the Pacific Mail case the trial court entered a judgment that inflicted the penalty up through the date of the decree of the trial court.

And the appellant sought to have that decree reviewed.

The Court of Appeals then acted to add to the penalty during the appellate procedure, and the Supreme Court’s action, Your Honor, was simply to delete what the Court of Appeals had added, but not to review the judgment of the trial court where they had exercised the penalty for the entire period up until the date of the district court’s decree.

But there’s nothing in the language of the statute, is there–

Robert A. Chaffin:

There is not, Your Honor.

–to justify that?

Robert A. Chaffin:

There is not, Your Honor.

Mr. Chaffin I suppose it’s totally irrelevant, but I take it he has long since recovered from his discomfiture?

Robert A. Chaffin:

He made an uneventful recovery, Your Honor, and the Petitioner does not in this case contend that the Respondent’s failure to pay his wages inflicted greater injuries upon him, Your Honor.

I would, in reply to–

Were they unable to obtain surgical advice for his hemorrhoidal condition in Brussels?

Robert A. Chaffin:

–No, Your Honor.

He had hospitalization treatment in Brussels and actually reported back to the vessel while it was still in the port of Rotterdam, while it was in the port of Rotterdam.

And his superintendent, his supervisor, is the individual who actually denied the payment of his wages to him, and that is found by the trial court in its findings of fact and it’s uncontested.

I had the impression from either your brief or somewhere that he had a complete recovery.

Robert A. Chaffin:

He did have a complete recovery, Your Honor.

Very, very quickly.

Robert A. Chaffin:

Within five weeks he had recovered and returned to work, Your Honor.

Well, did he press his claim with the employer for this penalty wage?

Robert A. Chaffin:

The trial court found that he did press his claim with due diligence.

In what way?

Robert A. Chaffin:

He made telephone calls, he attempted to collect his wages.

We also instituted suit within 16 months following that, Your Honor, and after the institution–

It was 16 months before you instituted suit?

Robert A. Chaffin:

–Well, he tried without avail to collect his wages, Your Honor, up until September of the following year, without the aid of counsel.

Not that it matters, but in Houston this case was tried, right?

Robert A. Chaffin:

This case was tried in Sherman, Texas, Your Honor.

In Sherman.

Robert A. Chaffin:

The Eastern District of Texas.

Well, that’s about 30 miles from Houston… from Dallas, correct?

Robert A. Chaffin:

Yes, sir.

If this man had been injured in Sherman, how much would he have collected?

If he had gotten this same injury on land in Sherman, as a lawyer how much would you assume be would collect?

Robert A. Chaffin:

Your Honor, the penalty wage statute applies only to seamen’s injuries.

He would not receive any penalty at all had he… any recovery at all–

I said if he was working for a truck company that had no connection with the sea at all and he had gotten the same injury and suffered the same injury, same amount of time, and he had sued for damages, about how much would he have collected?

Robert A. Chaffin:

–He would have collected nothing but his actual damages, Your Honor.


Robert A. Chaffin:

He would have collected only his actual damages in that particular instance, Your Honor.

It would be about what, $100?

Robert A. Chaffin:

No, Your Honor.

It would be $412.50 plus his attorney’s fees and collection–

And solely because this happened on the sea, you get $300,000?

Robert A. Chaffin:

–No, Your Honor.

We get that amount solely because the Congress saw fit to pass a penalty provision.

And if I might, Your Honor–

Counsel, before you proceed, I’m not sure I understand how you get up to $300,000.

If the $412 had been paid on May 5th, would that have ended the matter?

Robert A. Chaffin:

–It would have, Your Honor.


Robert A. Chaffin:

It would have.

Then you multiply 202 by the number by the number of days–

Robert A. Chaffin:

By each and every day.

–from April 1 until the district court decided the case?

Robert A. Chaffin:

That’s correct, Your Honor.

What did he… what was actually withheld, counsel?

Robert A. Chaffin:

What was actually withheld?

Your Honor, he–

What wages were actually withheld?

Robert A. Chaffin:

–The actual mechanism of withholding was that he was paid every two weeks, Your Honor, and that the Respondent withheld $137.50 from his paycheck.

Each week?

Robert A. Chaffin:

Each two-week period.

In order to cover the possibility of his having to be sent home?

Robert A. Chaffin:

That’s right, Your Honor.

So this was… they failed to pay over to him the withholding?

Robert A. Chaffin:

That’s right, Your Honor.

There is also an obligation under the maritime law that in the event that a seaman is injured while in the service of his vessel his employer is required to repatriate him.

I understand that, I understand that.

But that has nothing to do with this seaman.

Robert A. Chaffin:

It does not, Your Honor.

Nor with this case.

Do you think that withholding is wages for the purpose of this statute?

Robert A. Chaffin:

The trial court so found, Your Honor.

It was withheld from his wages.

He earned the money and they failed to pay him that money.

Is that what you demanded?

Robert A. Chaffin:

Yes, it is, Your Honor.

That’s what was refused?

Robert A. Chaffin:

That’s what was refused, Your Honor.

Now, suppose they had paid you $411.50.

Would you be making the same claim?

Robert A. Chaffin:

I would not, Your Honor.

I think the statute reads “without sufficient cause” and I would not think that if they had made a simple clerical error, Your Honor–

Well, no.

They just said… there’s no explanation.

What if they said, we’ll pay you $400.

I guess literally the statute applies.

Robert A. Chaffin:

–I wouldn’t think it literally would… it perhaps might apply literally, Your Honor.

But the Court, this very Court, has interpreted the “without sufficient cause” provision of the statute to mean that it must be a callous, recalcitrant, unreasonable withholding.

Did you have to pay… did your client have to pay his own way home?

Robert A. Chaffin:

He did, Your Honor.

That callous and recalcitrant goes to the employer’s state of mind, not to the amount withheld, doesn’t it?

I mean, supposing in Justice White’s example that they had said, we’ll pay you $400 and no more, you may think you’ve got a claim for $12 but we’re just not going to fool around with it, we don’t care what the rights of the matter are.

Now, wouldn’t you still have a claim under the statute?

Robert A. Chaffin:

I believe that you would, Your Honor.


Robert A. Chaffin:

If I might point out to the Court, Your Honor, there is also a provision that if the amount of the wage is in dispute and the employer, the Respondent, feels he has a good faith defense to that, then the proper procedure there, Your Honor, is to tender that money into the registry of the court, let it be known that a dispute is had as to that amount–

Counsel, what court should the Defendant have tendered the money into?

Robert A. Chaffin:

–In this particular instance, Your Honor?


Robert A. Chaffin:

The Defendant could have tendered the money into the trial court’s registry.

But that would have been a couple of years after.

They still would have had a couple of years of penalty wages accrued, wouldn’t they?

Robert A. Chaffin:

That’s correct, Your Honor.

I would point out also that throughout this case the Respondent–

What would they have had to tender?

Would they have had to tender just the $412 or plus all the penalty wages that had accrued up to that date?

Robert A. Chaffin:

–It is my understanding of the case law, Your Honor, that it would simply be a tender of the wages due.

And so they could have done that at any time?

Robert A. Chaffin:

Any time, Your Honor.

Before or after suit?

Robert A. Chaffin:

Before or after suit, Your Honor, that’s correct.

Mr. Chaffin, I think you told me earlier that without the help of counsel initially the Petitioner made demands upon the employer.

Robert A. Chaffin:

He did, Your Honor.

How frequently were those demands made?

Robert A. Chaffin:

Well, Your Honor, the evidence introduced at the trial court was that he made the demand when he left their employ, and there were records, telephone records, that he had telephoned his employer on several occasions previous to that… subsequent to that.

In addition, he wrote them a letter asking for his wages, Your Honor.

And on each instance what he was asking for was the $412?

Robert A. Chaffin:

Well, he was asking for the $412, as well as other elements.

He was asking for the money back that he had had to pay his own way home.

They had lost some of his personal effects.

He was asking that he be repaid those things.

But he was not asking for any damages for his injuries, Your Honor.

And in each instance did he get a response from the employer to his demand?

Robert A. Chaffin:

In effect he did not, Your Honor.

You mean they simply didn’t answer him?

Robert A. Chaffin:

Well, if he would get a telephone call, he would simply receive a reply that we’re looking into it or whatever.

But at the time f the trial, Your Honor, the Respondent brought forth two of their own witnesses from their home office, and those witnesses did not offer any reason or any excuse as to why the Petitioner’s wages had never been paid.

No explanation of any kind?

Robert A. Chaffin:

No explanation whatsoever, Your Honor.

May I ask one other question.

I may have misunderstood your answer.

Did you say they could have made the tender before or after suit?

Robert A. Chaffin:

Either way, Your Honor.

Where would they have made the tender before suit was filed?

They could have just paid him the $412, which would have left in dispute any of the penalty wages.

Robert A. Chaffin:

That’s correct, Your Honor.

No, but my question is… you still haven’t answered my question.

Robert A. Chaffin:

I beg your pardon, Your Honor.

My question is, if they wanted to still dispute the $412, but pay it into court somewhere, where could they have paid it before suit was filed?

Robert A. Chaffin:

They could have filed their own lawsuit, Your Honor.

Oh, I see.

I see.

Robert A. Chaffin:

The statute provides, Your Honor, that it is a sum recoverable as wages, not that it is his wages that he is recovering, Your Honor.

The penalty portion is not a wage itself; it is a sum recoverable as wages, a sum equal to two days pay.

But it is not to be considered as wages, Your Honor.

A portion of the Respondent’s, and I think the significant thrust of their argument, goes to the point that in the Respondent’s opinion this is to be considered as a compensatory or remedial measure.

Your Honor.

Let me ask you again, they withheld $412.

Now, the penalty is two days wages full, full two days?

It isn’t just twice what they’ve withheld?

Robert A. Chaffin:

No, Your Honor.

It is a sum equal to two days pay for each and every day during which the withholding continues.

It is not two days wages, Your Honor.

It is a sum equal to that.

And there is a distinction there.

But it is not a sum equal to what they have withheld?

Robert A. Chaffin:

It is not, Your Honor.

The sum that they have withheld bears no relationship to the penalty inflicted by the statute.

This Court, Your Honor, in 1930, speaking through Justice Stone in a case called Collie against Fergusson, when this very statute was before the Court said, Your Honor:

“The Petitioners argue that the statutory allowance is compensatory. “

“However, the words ‘refuses or neglects to make payment without sufficient cause’ connote conduct which is in some sense arbitrary or willful, or at least a forfeiture not attributable to impossibility of payment. “

“We think the use of this language indicates a purpose to protect seamen from delayed payment of wages by the imposition of a liability which is not exclusively compensatory, but designed to prevent by its coercive effect arbitrary refusals to pay. “

Does that suggest, Mr. Chaffin, that there is absolutely no equitable defense at all?

Robert A. Chaffin:

The statute does not provide for equitable defenses.

Do our cases touch on whether or not the employer has any equitable defenses?

Robert A. Chaffin:

Your Honor, there is a case out of this Court called McCrea against the United States.

That case is once again by Justice Stone, in 1934.

Robert A. Chaffin:

In that particular case, Your Honor, the Petitioner, who was a seaman, urged on the Court that his wages had been withheld from him without sufficient cause.

The trial court found that they had not been withheld, but that the seaman had not presented himself to receive his wages.

However, after that the seaman took the position that the failure to pay without sufficient cause activated the penalty even after the period of time at which they are originally due to him.

Mr. Justice Stone in that case, Your honor, said that you do not consider events which happen beyond the time period set forth in the statute, that the statute provides a reasonable and a definite manner in which the seaman can recover the penalty.

Now, Your Honor, I believe that that is a perfect analogy to this case, because what the Respondent is attempting to do here truly, Your Honor, is to draw into issue facts that occurred after the statute had been triggered.

Yes, but they did in the Pacific Mail case draw into consideration the fact that a judgment had been entered and there was reasonable cause to appeal it.

Robert A. Chaffin:

In the Pacific Mail case–

Post… you know, post to that fact.

Robert A. Chaffin:

–Well, Your Honor, I believe that is clearly distinguishable.

For one thing, in the Pacific Mail case–

Well, all I’m making the suggestion is that sometimes you can look at post-occurrence facts.

Robert A. Chaffin:

–Your Honor, yes, you can, Your Honor.

But those occurrences they were talking about there were post-judgment occurrences.

Now, the Supreme Court in that case also said, Your Honor, that they need not reach the issue of whether or not the cause of action had merged into the judgment, which is the common and ordinary rule–

They said there was sufficient cause for appeal.

They read the word “sufficient cause” to apply to a later period of time.

Robert A. Chaffin:

–That’s right, Your Honor, that’s correct.

What if an employer, upon receiving the demand, simply said, you’re wrong, you have not any wages coming, and then there was a dispute.

Then would it turn on what the court would ultimately find on whether at first there was a bona fide dispute, and second, whether their conduct was, using these strong terms that have been mentioned–

Robert A. Chaffin:

Whether, if the employer owed the wages, Your Honor, the dispute would turn… or the applicability of the statute would turn on whether or not the withholding was without sufficient cause.

Now, if the employer wants to take that risk they may do so, Your Honor.

The more reasonable approach is to tender the wages, to pay constructively the seaman’s wages into the registry of the court, and then proceed from that point forward.

–Tender them, tender the wages claimed in full settlement and final, binding disposition of all pending claims?

Robert A. Chaffin:

That’s right, Your Honor, that’s right.

You say that would be the way to wash it–

Robert A. Chaffin:

That is the more reasonable approach.

–All he would have to do is tender $412 to stop the accumulation of any penalty?

Robert A. Chaffin:

That’s right, Your Honor, that’s right.

He’d have to do that within the time, the two-day time period?

Robert A. Chaffin:

No, Your Honor.

Robert A. Chaffin:

He can tender the wages at any time after the statute–

Well, would there be penalty… if he delays until after the two-day time period, even if for only ten days, there are penalty wages at least for the ten days?

Robert A. Chaffin:

–That’s right, Your Honor.

I point out to the Court, Your Honors, that this statute had its origin in 1790, but in 1872 the statute originally read that the penalty would be a sum not greater than two days pay for a time period not exceeding ten days.

It gave the judiciary discretion.

That provision was consciously deleted from the statute in 1898 by the Congress, Your Honors, at which time the penalty was changed to read one day’s pay for each and every day during which the penalty continued.

So the legislative history of the statute, Your Honor, even though it be skimpy, I would say to the Court is contained actually in the evolution of the statute itself in that the statute originally contained a provision that allowed the trial court discretion.

That provision was removed by the Congress, Your Honor.

It was a provision that was removed after the bill had been passed by the Fifty-Fourth Congress in 1896 and went to the Senate in 1898.

So the shipping industry as well as the seamen had a perfect opportunity to have both of their sides aired, Your Honor, and even with that that was consciously deleted.

Now, I point out, Your Honor, that in the case–

But in 1890 the seamen were not organized.

The seamen were not organized.

Robert A. Chaffin:

–They were not organized as well, Your Honor.

No quarrel with that.

They still got a pretty good result.

Robert A. Chaffin:

They got a very fine result, Your Honor.

And furthermore, they got the… it used to be… in 1898 it was one day’s pay.

Robert A. Chaffin:

That’s right, and in 1915 it was upped to two days pay.

And it was mandatory.

Robert A. Chaffin:

Mandatory, Your Honor.

Could that have been because Congress thought they needed protection?

Robert A. Chaffin:

That is exactly why it is, Your Honor.

Do they still need that protection?

Robert A. Chaffin:

They do, Your Honor.


Robert A. Chaffin:


They’ve got a union, they’re organized.

Robert A. Chaffin:

Well, Your Honor, when you’re at sea and discharged in a foreign port the union and your organization may not be nearly so assistive to you as you might think, Your Honor.

The dangers that a seaman–

Have you ever talked to any captains recently?

Mr. Chaffin, I know you think you answered this, the question my brother Powell asked you earlier.

What’s the starting date for the penalty wages under your submission?

What day?

Robert A. Chaffin:

–Under my submission, Your Honor?


Robert A. Chaffin:

The starting date is April 1, the date that he–

April 1 what year?

Robert A. Chaffin:

–1976, Your Honor.

And what’s the terminal date?

Robert A. Chaffin:

May the 6th, 1980, the date of the district court’s decree, Your Honor.

And it’s the double wages for that period from April ’76 to 1980–

Robert A. Chaffin:

That’s right, Your Honor.

–that brings out the $300,000?

Robert A. Chaffin:

That’s right, Your Honor.

Why should it terminate with the rendering of the district court’s judgment?

Robert A. Chaffin:

That’s the holding of Pacific Mail, Your Honor.

That it automatically terminates or that it terminates only if the employer had good reason to appeal, or–

Robert A. Chaffin:

There is no authority, Your Honor… I suppose that if it was a bad faith appeal that the appellate court could continue to have the penalty accrue with it.

The standard rule of law, Your Honor, is that every cause of action merges into the judgment that’s entered on that cause of action.

And I see no reason to distinguish this statute from that, Your Honor.

Other than that, Your Honor, I would save some time for rebuttal, but I would point out to the Court that in the interpretation of the statute where neither the validity nor the applicability of the statute is challenged, which it is not here, Your Honor, and the words of the statute are plain and unambiguous, that simply because the statute brings with it a harsh financial result, a severe penalty, that the courts cannot sit in review and reverse what is a conscious decision of the Congress.

–Would the stringent provisions of the statute that you have just referred to, harsh you called them, be tolled if the employer had tendered $412 into a court to be impounded until the case was resolved?

Would that stop it?

Robert A. Chaffin:

That’s a constructive payment of seaman’s wages, Your Honor.

And it would stop it, according to case law.

On that one point, is there statutory support for your suggestion that that tender of that amount would be sufficient?

Robert A. Chaffin:

No, Your Honor.

That’s based on a court, one Court of Appeals?

Robert A. Chaffin:

No, Your Honor, it’s based on several Courts of Appeals.

Is that right.

Robert A. Chaffin:

Thank you, Your Honors.

Warren E. Burger:

Mr. Goller.

Theodore Goller:

Mr. Chief Justice, may it please the Court:

There is but a single issue in this case, and that is whether or not the trial judge had discretion to determine the period for which the penalty under Section 596 of Title 46 would run.

I was somewhat surprised to hear counsel say this morning that the time of the penalty would stop with the rendition of the district court’s decree, because everything that he has submitted has indicated that the penalty would simply run on into perpetuity until paid; a literal wording of the statute would require that result.

But do you agree with him that if you had tendered the $412 at any time the accrual would have stopped?

Theodore Goller:

I think that would be true, Your Honor.


Theodore Goller:

Yes, sir.

Including tendering it to a court to be impounded, or must it have been given, tendered to the party, the employee?

Theodore Goller:

Your Honor, I’m not aware, Mr. Chief Justice, I’m not aware of a case specifically passing on this point.

There are suggestions in the cases that the funds might have been tendered in some fashion.

But I’m not aware of a case where it specifically has been held.

The statute permits it, though?

Theodore Goller:

The statute says nothing about it.

The statute is silent on–

Mr. Goller, may I ask, I gather the district judge picked a 30-day period.

That was approximately the time the Petitioner was out of work, was it not?

Theodore Goller:

–May I expand on the facts–


Theodore Goller:

–just a little bit for the Court’s edification?

This Petitioner was a welder by trade who was employed by contract with my client in New Orleans to go to Antwerp to join a pipelaying barge that was then being made ready to go into the North Sea and conduct pipelaying operations.

In the contract it provided that the employer would be entitled to deduct from his pay $137.50 for each of the first pay periods, to be applied against his return transportation in the event that he breached his contract.

Maybe his girl friend would write him and say, I want you home, so he got the first airplane home and came back to the United States.

That is the purpose of the provision in the contract.

When he arrived in Antwerp he worked on the pipelaying barge in the harbor for the period from March 7, 1976, until April 7… I’m sorry, April 1, 1976, which was the day that he had difficulty with his preexisting hemorrhoids and went into the hospital at Antwerp for treatment for the hemorrhoid condition.

When he came out of the hospital he was offered the option of taking care of himself at Antwerp or coming home to make his recovery.

He chose to come home.

In fact, he purchased his airplane ticket while he was still in the hospital, before he ever reported back to the barge.

Theodore Goller:

He returned to Houston.

He was seen a couple of times by a colon specialist in Houston, a rectal specialist.

He was pronounced fit for duty on May 3, 1976.

He actually did go back to work for another employer in the North Sea in the same type of employment on May the 5th, 1976.

So the period–

So he was actually out of work for how many days?

Theodore Goller:

–34 days.


And the district judge gave the penalty wages, as I understand it, for approximately 30 days, did he not?

Theodore Goller:

For exactly 34 days, Your Honor.


So he picked the time that he was actually out of work as the limit of his entitlement–

Theodore Goller:

That is correct.

–to the wages.

Theodore Goller:

And he doubled his straight time wages of $101.20 a day to arrive at a figure of $202.40 a day, times 34 days, and it figures out to exactly $6,881.

Of course, suppose he had been out of work only two or three days.

Do you suppose that would have been a fair limit?

Theodore Goller:

Well, of course, we take the position, Your Honor, that the construction of the statute and the determination of the penalty period for which the statute should run should rest entirely in the discretion of the trial judge–

As a matter of–

Theodore Goller:

–or of this Court… excuse me?

–As an equitable matter?

Theodore Goller:


As an equitable matter?

Theodore Goller:

That’s right, Your Honor.

And the First, the Second, the Fourth and the Fifth Circuits have adopted that position.

The only circuits that have held to the contrary are the Third and the Ninth, the Ninth based on a Third Circuit decision which we believe to be–

But isn’t there a problem whether the statute permits that interpretation of authorizing the district judge to do that?

Theodore Goller:

–If one should look literally at nothing but the words of the statute, yes, Your Honor, there is a problem.

Well, is there anything in this record to indicate why the wages weren’t paid over?

Theodore Goller:

Mr. Justice–

Some basis for an equitable discretion?

Theodore Goller:

–Mr. Justice, there is not.

And again, if I may expand on the facts a little bit, when this gentleman left Antwerp to come back, as the record will reveal, the exhibits will reveal, there were telephone calls made from the New Orleans office of Oceanic Contractors, the Respondent, attempting to get back in touch with him, to get him to return to work.

There are telex messages that were… between Oceanic–

Did he make a demand for his wages in Antwerp?

Theodore Goller:

–He says he did.

Did the district court find he did?

Theodore Goller:

The district court found he did.

There’s a matter in dispute–

So there’s no… was it denied?

Did the employer deny that he made such a demand?

Theodore Goller:

–I don’t recall that the employers, the testimony that we put on at the trial really went to that point.

So we’ve assumed that the district judge is correct in the handling of the case and have really not–

That the demand was made was just not… and the money was just not paid?

Theodore Goller:

–Mr. Justice White, the reason that the demand… the money was not paid, if the demand was in fact made, was because we expected him to come back to Antwerp and go back to work and honor his contract.

Where do you find that in–

–That isn’t even in the record.

Theodore Goller:

That he was coming back?


Theodore Goller:

The testimony in the transcript of the testimony shows that very clearly.

Mr. Justice Brown–

Could you cite to someplace in the findings of the district court where he makes a finding on that?

Theodore Goller:

–I do not believe there is a finding.

I’m simply reciting the evidence as it appeared in the district court.

The district Judge did find that the withholding of the $412.50 was without sufficient cause.

We do not contest that at all.

He found it was callous also.

Theodore Goller:

He did.

Aren’t we bound by those findings, counsel?

Theodore Goller:


Theodore Goller:

We have not contested the findings, and I think under Rule 56 you are bound here, Your Honor.

How do you read discretion into the language of the statute?

Theodore Goller:

I think you really have to look at the history of the statute itself and to realize an consider the role of the admiralty courts.

The admiralty courts have been accepted as the protectors of seamen’s rights from the time this statute was enacted originally in 1790.

And that’s shown by a clear reading of the statute, because the statute itself provides that the master must respond in admiralty.

Congress as early as 1790 was aware and knew that this statute would be construed in an admiralty court.

And when you… as it comes, as it is reenacted–

Are you saying just because it’s an admiralty court we have to read in discretion?

Theodore Goller:

–I say, yes, Your Honor, because it is an admiralty court and because the admiralty courts have traditionally been the protectors of the seamen’s rights, I say that Congress enacted this statement with that knowledge beforehand, with the understanding that the admiralty courts would protect the rights of these seamen.


Counsel, I’m still worried about… knowing all of this that you talked about, and your client knew all of this, why couldn’t they have gotten out of this for $400?


Theodore Goller:

–Your Honor, I suppose–

Why did they choose not to?

Theodore Goller:

–with hindsight I think this is exactly what happened.

The Petitioner came back to the United States.

The operational office was in Antwerp, and I think it really was a matter of inadvertence, despite what Judge Justice found, that they didn’t make the payment.

Are you suggesting–

–Which is what Congress didn’t want to happen.

Theodore Goller:

I believe that’s right, Your Honor.

And $300,000 would break you of that.

Theodore Goller:

That’s right.

Your Honor, the same thing would be true if one dollar were inadvertently withheld as a consequence of an honest mistake.

If there is no finding of sufficient cause, the penalty over the period of four and a half years or whatever it is, some 1600 days, would result in a payment of $324,000.

It certainly is strange, after the lawsuit was started… at least that somebody in the company must have known the lawsuit was going on.

Theodore Goller:

They did, Your Honor.

And that is of course the reason that the Respondent paid off the judgment in September 1980.

The judgment was paid September 17th, 1980.

But we think that the heart of this case is the fact that the statute itself is a remedial statute.

It’s not a penalty statute.

Theodore Goller:

It’s not penal in nature.

The statute provides that these sums shall be recoverable as wages, not as penalties.

And if we turn to this Court’s holding in Pacific Mail against Schmidt, we say that that case is direct authority for the proposition that the court has discretion for setting the time of the penalty.

In that case a seaman who returned from a foreign voyage was paid his wages through a date, September 23, 1913.

He stayed on the vessel for seven or eight days later and then was discharged when they found some silverware missing and accused him of taking it.

So they offset the value of the silverware against the wages due him for those eight days.

And the trial judge found that the offset was unlawful, was without sufficient cause, and invoked the penalty up until the date of trial, which was a date like November, 45 days or so.

The Court of Appeals extended that penalty through the date of the appeal.

When it got to the Supreme Court, the Court held that there was sufficient cause for taking the appeal and therefore period of the penalty would be… would stop as of the date of the district court’s decree.

Now, logically, once there is a finding that the wages were withheld without sufficient cause, then it seems to me that no court after that can come along and say that the penalty will run for 30 days or 60 days or 90 days and then the penalties shall stop, because if you read the statute literally the penalty is payable, if it is a penalty, is payable for each and every day that payment is withheld.

So literally it’s payable until paid, which in our case frankly would be September 17, 1980.

What about your opponent’s argument that the claim merges in the judgment and once you have a judgment the rules governing payment of judgments would govern, rather than the statute?

Theodore Goller:

That is not what this Court held in Pacific Mail.

What this Court did hold in Pacific Mail was that there was sufficient cause for the shipowner taking the appeal from the district court’s judgment, and that’s all that it held.

We do not think that there is a merger under the circumstances, if you read the statute literally.

When you were in the district court, were you then principally litigating the question of whether the $412 was due or was the litigation focusing on the penalty provisions?

Theodore Goller:

Mr. Chief Justice, the litigation focused on every aspect of the case, and that is why Judge Justice rendered the opinion he did.

He found the vessel to be unseaworthy, on the issue of the facts of the case, the circumstances of this accident.

He awarded $5,000 as general damages for the injuries caused by the unseaworthiness.

He found that Respondent also failed to pay maintenance for this period from the date of the accident up until May 3, when the Petitioner was found fit for duty.

So he awarded not only the maintenance, but he awarded a sum for attorney’s fees under this Court’s decision in Vaughn against Atkinson, that the failure to pay maintenance was improper.

Are there any cases which give any intimation that the earnings from other employment are to be credited against the ultimate amount of the claim, as would be the case with a violation of the civil rights laws in denying employment, something of that kind?

Theodore Goller:

There are no such direct holdings to our knowledge, Your Honor.

Did you make any proffer of evidence of wages from other jobs by way of mitigation?

Theodore Goller:

Yes, we did.

We showed the Petitioner’s wages for Viking Offshore Company, which is the company that he commenced working for on May 5, 1976, which was 34 days after his accident.

Was that proffer accepted by the district court or refused?

Theodore Goller:

It was accepted in the sense that we feel that all those factors came into the district court’s decision in setting the penalty period at 34 days, the time that he returned to work.

That’s what he specifically considered.

You said earlier in your argument that your view is that these amounts are paid as wages?

Theodore Goller:

Yes, sir, under the statute.

The statute says specifically they shall be recoverable as wages.

Even though he was working somewhere else and making comparable wages?

Theodore Goller:

Well, I think the statute is speaking to the fact that these sums to be recovered will be wages and not penalties, Mr. Chief Justice.

As the Chief Justice says, a normal rule would be to set off, to set off amounts earned elsewhere.

Theodore Goller:

I know of no decisions permitting a setoff in these cases.

Well, has there ever been any decisions denying it?

Theodore Goller:

Not that I can recall, and I can’t–

Certainly none here, are there?

Theodore Goller:

–There are none.

You spoke of the failure to pay the $412 in Antwerp on demand, the demand of which the company seemed to be perhaps not fully aware, that it was a result of inadvertence.

Now, you mean the kind of inadvertence that takes eight days to get a letter from Baltimore to Washington, or what kind of inadvertence do you mean?

Did somebody just drop the ball, is that it?

Theodore Goller:

I think that is it, Mr. Chief Justice.

When the Petitioner returned to the pipelaying barge following his discharge from the hospital in Antwerp–

That’s certainly not what the district court said.

The district court said the refusal to pay unearned wages to claimant constituted arbitrary, unreasonable, callous and willful disregard of the Plaintiff’s rights.

That certainly doesn’t square with your answer that it’s an inadvertent thing.

Theodore Goller:

–Well, Mr. Justice Rehnquist, I’m going back and drawing on the facts, the transcript, the testimony that was in evidence.

Did you ever challenge any of the district court’s findings?

Did you appeal from the district court to the Court of Appeals?

Theodore Goller:

We did not.

And you haven’t cross-appealed from the judgment of the Fifth Circuit, have you?

Theodore Goller:

We did not.

Aren’t you bound by those findings?

Theodore Goller:

We are bound by those findings, and I understand that.


Your only challenge is that the Court of Appeals was entitled to… and the district court… entitled to read the statute as they did read it?

You’re not challenging the $23,000 recovery?

Theodore Goller:

–We are not.

Or the $412 of wages?

Theodore Goller:

We are not.

So far as we know, that $412.50 was not in fact paid, and the trial judge found that it was not paid.

The only thing that we are saying is that the trial judge was correct in exercising his discretion to limit the period of the penalty and that he has that discretion, and that is vested in the admiralty courts.

Is there anything in the record to show what his earnings were… you made a proffer… what his earnings were with the other employer?

Was it at the same rate, a comparable rate?

Theodore Goller:

I do not know the rate.

There is evidence in the form of an exhibit in the file showing, I believe, what his earnings were.

And as I recall, it was around $6500 for a short period of time.

There is evidence–

Did he work continuously from the time he went back to work?

Theodore Goller:

–He worked for a short period–

But not continuously?

Theodore Goller:

–Not continuously.

Nor would he have worked continuously for the Respondent, because the pipelaying season lasts in the North Sea only from the time the vessels can get out in the spring until they have to come in in the fall.

And there was a finding, as I recall, by the trial judge that the pipelaying season would have terminated on September 15 of 1976.

Mr. Goller, I gather your whole case turns on our accepting your submission that because it’s in admiralty the statute necessarily, in its application in admiralty, is conditioned on an equitable discretion in the trial judge to do what he thinks is the just thing to do in terms of fixing a penalty period?

Theodore Goller:

I feel that’s a fair summation of our position, based upon the decisions of the First, Second, Fourth and Fifth Circuits.

We feel the only case to the contrary really is the Swain case of the Third Circuit and that the Swaine Court simply misinterpreted this Court’s holding in the Pacific Mail versus Schmidt case, because in that case that’s exactly what this Court did.

After the penalty had been invoked, had been triggered and had run for some period of time, as I recall around 45 to 60 days… in any event, from September 13th to about November the 11th… then this Court held that the penalty should cease at that time.

So if we read the statute literally this Court would not be empowered to make that holding.

Now, it did it, the Court did this, by saying that there was sufficient cause for the appeal.

But if we accept Petitioner’s argument and literally, slavishly, blindly apply this statute, then it would go on and on and on forever until paid.

The harsh terms of the district court’s finding, apparently tasked in terms of the traditional analysis of this statute, hardly laid a very good foundation for his invoking equitable discretion, would you agree?

Theodore Goller:

Yes, unless… and if you view simply that finding without him taking into consideration all of the evidence in the case… the fact that the injuries were very minor in nature, that when the Petitioner returned to the United States he saw the physician only twice and within a period of 31 days he was declared fit for duty, and the fact that he’d had a prior hemorrhoid condition and this was simply a recurrence of it, that he went right back to work and was able to perform his work as well as he had prior to the injury.

Mr. Goller, I could understand an argument about discretion better if there was some defensible reason given for the failure to pay.

If there was a dispute over whether there was cause for withholding or not, you might say that the Congress certainly didn’t intend to impose this penalty if there was an arguable, reasonably arguable reason for withholding.

But there’s nothing in this record to indicate any justifiable cause for withholding, is there?

Theodore Goller:

Well, I think there is, Mr. Justice White.

This is just a pure… this is just a pure argument that, even though we deliberately withheld it, we nevertheless… there’s nevertheless discretion to disregard the statute.

Theodore Goller:

Well, I think there is only when you consider the totality of the circumstances and all of the evidence the judge had before him when he decided this case.

Well, that may be.

As Justice Rehnquist says, if there were different findings it might help you.


–Of course, if there were different findings there wouldn’t have been any penalty wages.

They had to make the finding of deliberate withholding to justify even one day’s penalty wage.

Theodore Goller:

To justify any penalty it had to be without sufficient cause.

What is equitable reason?

There’s too much money?

Theodore Goller:


So they can’t have a case where there’d be discretion if you are bound by the findings.

Theodore Goller:

There had to be a finding of without sufficient cause in order to trigger the statute initially.

And whether you word it as callous, arbitrary, willful, wanton, or whatever, there has to be that finding.

Well, but that’s… to say it’s without sufficient cause is one thing.

To say it’s unreasonable, callous and willful disregard is another.

I mean, the district court wouldn’t have had to make those findings in order to find that it was without sufficient cause.

Theodore Goller:

Well, again all I can say, Mr. Justice Rehnquist, is that is what this particular trial judge did find.

What another trial judge might find on the same facts might be entirely different.

Well, doesn’t the law in the Fifth Circuit require the malicious type finding in order to justify the conclusion that it was without sufficient cause?

Theodore Goller:

I believe that it does, Your Honor.

So that in order to find any penalty wages, he had to find this kind of malice–

Theodore Goller:

That’s right.

–in the Fifth Circuit.

Certainly the statute doesn’t require that, does it?

Theodore Goller:

The statute does not require that.

We’re bound by the statute, I take it, not by the Fifth Circuit’s rule.

But the statute as construed in the Fifth Circuit requires it.

Theodore Goller:

That’s correct.

The decisional law requires it.

What case requires it, by the way?

Theodore Goller:

American Federation versus Dahl, D-a-h-l, Your Honor.

So that in the Fifth Circuit you think that if the trial judge thought, well, it was reasonably arguable when they denied it, it wasn’t malicious, then there would be discretion?

Theodore Goller:

The opinion indicates that–

They don’t even need that.

They say there is discretion even if it were malicious.

Theodore Goller:

–If the Fifth Circuit had a case where the trial judge would simply hold that the withholding is without sufficient cause, I believe the Fifth Circuit would allow the penalty to stand.

The Fifth Circuit does–

Well, it didn’t in this case.

Theodore Goller:

–Well, it affirmed the judgment of the district judge.

Well, there were findings… there were findings that it was malicious, or something to that effect, anyway.

And yet they didn’t allow the penalty to stand.

Theodore Goller:

Yes, Your Honor, the $6,881.60 is part of the total judgment.

I understand that.

But they certainly didn’t allow the running beyond the 34 days.

Theodore Goller:

That’s true, they did not reverse the decision of Judge Justice and reinstitute the penalty.

If the Court please, might I just call attention to another statute which this Court has interpreted that I think justifies our position in this case that the court has discretion in interpreting the statute.

Section 5 of the Longshore Act provides that the liability of an employer for compensation under that Act shall be exclusive and in place of all other liability to the injured longshoreman or anyone entitled to recover compensation under that longshoreman.

Yet… when you read that statute, the literal wording of the statute, you read it clearly, that’s what it says and that’s all it says.

Yet this Court in Reid against Yaka and in Jackson versus Lykes Brothers held that where a longshoreman is employed directly by a compensation-paying employer who is also a shipowner, then the shipowner is not immune from tort liability and the longshoreman may sue the shipowner directly for damages under the general maritime law.

Specifically, those cases held that he had a cause of action for damages for unseaworthiness.

Now, that statute was amended in 1972 and the longshoreman’s remedy for unseaworthiness was eliminated.

Since that time the appellate courts have held that the longshoreman nevertheless still retains his direct action against his employer under the principles of maritime negligence so long as the quality of the negligence that causes the accident is negligence in the navigation of the vessel.

Courts have distinguished negligence in loading the cargo on the vessel, which is normally longshore work, and navigation of the vessel, which is operation of the ship.

And I cite those cases to you simply to reaffirm that, although the literal wording of the statute in question may say that the two days wages or the double wages are payable until paid, certainly this longshore statute shows clearly that this Court and other federal courts obviously have the right to interpret these statutes to divine the intent of Congress.

I think the history of this statute indicates that Congress intended to turn its administration over to the federal admiralty courts, and if Congress had been dissatisfied with it it would have amended the statute, because for many years these cases have been on the books allowing the courts to exercise their discretion in determining the period of the penalty.

You referred to a case, I think American Federation against Dahl, but I don’t see it, under that caption at least, cited.

Theodore Goller:

May I?

Yes, by all means.

Perhaps I got the title wrong.

Theodore Goller:

Sorry, Your Honor, I may have gotten my tongue twisted.

Theodore Goller:

It’s Caribbean Federation Lines versus Dahl.

That’s the Fifth Circuit case on the point.

Thank you.

Let me ask one question that may be pretty remote from the issue.

I notice the statute didn’t apply to whaling vessels.

Why not, I wonder?

Theodore Goller:

I would–

Is there anything in the legislative history that explains that?

Theodore Goller:


The statute also does not apply to fishing vessels in general, because–

I understood that.

Theodore Goller:

–the seamen on those vessels are paid by shares or by the catch.

It would seem to me the whaling vessel example would have fallen right within the purpose of the statute.

Theodore Goller:

Incidentally, if I may refer back to Pacific Mail against Schmidt, in that case the Court held that there was grave doubt as to whether or not the statute should be invoked at all under the circumstances of that case, because the Petitioner in the case… or the Respondent in the case, the seaman, was injured while the vessel was in port.

And here we have a seaman who was injured while the vessel was in port.

So the answer to this question is not all that clear-cut.

But at least we feel that certainly–

Is it correct that the conflict arose in, what was it, about 1966 or ’67?

Was there a conflict before then?

When was the Third Circuit case decided?

I had the impression that for about 50 years the statute was consistently construed to allow the district judge discretion.

In the Caribbean case, the Court of Appeals cites as authority the Mystic case in 20 Federal Second.

Theodore Goller:

–Yes, sir.

That’s fairly–

–That’s a case that holds there’s discretion, that’s right.

Theodore Goller:

That is how long the courts have so held.

Thank you.

Warren E. Burger:

Mr. Chaffin.

Mr. Chaffin, of course we know the general proposition that Mr. Justice Frankfurter expressed so well that if a statute is clear you don’t need to look to the legislative history.

But do you think Congress ever contemplated the possibility of a $320,000 payment for a $412 default?

Robert A. Chaffin:

Your Honor, I don’t know that they calculated, thought of that exact figure.

But I would suggest–

I mean that proportion.

Robert A. Chaffin:

–in relative terms I think they did, Your Honor.

I think they did in relative terms, Your Honor.

I think so clearly that–

Well, is it perhaps more accurate to say that Congress, as they often do, never gave it any thought one way or the other?

Robert A. Chaffin:

–Your Honor, I don’t really think that would be accurate in this case, because the Congress consciously deleted the 1898 which gave that limiting provision to the courts.

And the bill was the subject of extended debate, Your Honor.

I would suggest to the Court, Your Honor, that what’s really happening here is that the Respondent is attempting to make a back-door challenge to the validity of the statute, Your Honors.

The statute is clear and plain on its face, and that the rules interpreting the seaman’s statute are even more clear, that if there exists an ambiguity in a seaman’s statute that ambiguity must be interpreted in favor of the seaman.

Let me ask you one question on your theory.

When the statute before 1950 had the “not more than” language in it, did it… was it not true that the district judge then had discretion within the ten-day range?

Robert A. Chaffin:

That’s true, Your Honor.

And now by limiting the ten-day ceiling… they took the ten-day ceiling… is it also clear they took away his discretion?

Robert A. Chaffin:

That’s true, Your Honor.

That’s exactly our position, Your Honor.

But there are two different things that that one amendment accomplished, then.

Robert A. Chaffin:

Well, Your Honors–

Is there anything in the legislative history to make it clear that they intended to do both?

One, it removed the limit on his discretion.

Did it also entirely take away the discretion?

Robert A. Chaffin:

–Oh, Your Honor, the statute was clear on its face saying that he could not exceed ten days.


Robert A. Chaffin:

And when they removed that after two years–

And then he could exceed ten days.

Robert A. Chaffin:

–He could after that time, Your Honor, fix the running of the statute according to the terms of the statute.

I would suggest, Your Honors, that what’s really at issue here has nothing to do with the wording of the statute.

It is the impact of the statute, the financial burden which comes with it.

And I would suggest further, Your Honors, that that is not a proper matter for review by this Court, which is backed up by the case of Tennessee Valley Authority against Hill.

Robert A. Chaffin:

In that case, Your Honors, decided by the Chief Justice and written by the Chief Justice, a three-inch fish stopped a $100 million dam straight in its tracks, Your Honors.

$130 million.

Robert A. Chaffin:

$130 million.

So it’s clear that if the statute is valid, if it’s constitutional, in the case of the seaman he has been a protected breed of worker for several hundred years–

How do you explain the fact that for 50 years the Courts of Appeals consistently misconstrued the statute and Congress did nothing about it?

Robert A. Chaffin:

–I have no explanation for that, Your Honor, except to say that the statute was lightly applied in those days, and in these days–

It was what applied?

Robert A. Chaffin:

–Lightly applied.

You do not find a great judicial history on the statute, Your Honor.

But the case of Isbrandtsen against Johnson came before this case… this Court… in 1952 involving this statute.

Justice Burton then said, Your Honor, that in statutes which derogate the common law as known to the maritime law, those statutes must be strictly construed and construed in the favor of the seaman if there be a doubt; that legislation remedial to the seaman is to be given the benefit of the doubt if there exists one in favor of the seaman.

Well, if you’re going to get into maxims you’re up against the proposition that courts abhor a forfeiture too, aren’t you?

Robert A. Chaffin:

Courts what, Your Honor?

Abhor a forfeiture, which this really is.

Robert A. Chaffin:

This is not a forfeiture, Your Honor.

This is a statute designed to prevent great potential harms.

A seaman who is discharged in a foreign port without his wages can die there, Your Honor.

It is a significant potential harm this statute is designed to prevent.

It has punch and impact.

Doesn’t it take on the appearance at least of a forfeiture in traditional terms when the sanction or the penalty is so out of proportion to the injury that then courts have construed such things as forfeitures?

Robert A. Chaffin:

I suppose you could take that approach, Your Honor.

But that approach is rejected by numerous cases, numerous cases.

The Ryder against Solartone case, an antitrust case, was the same thing.

The statute carries with it significant financial impact, and that is in essence the entire objection to the law, Your Honor.

And I just cannot buy that the Congress could not foresee that after two years.

It’s an old statute and it has a punch and impact, which is simply removed if you interpret it as Respondent would have, Your Honor.

We would ask the Court to stabilize the law and have a uniform period for the running of the statute.

Warren E. Burger:

Just one more question.

Suppose, if… and I underline the “if”… the Court, this Court, concluded that the Fifth Circuit standard, its rule, was not correct.

Would it be an appropriate remedy to declare that that was an improper standard and send it back to return to the district court, so that the district court could reexamine it in light of what we would have then said is the correct interpretation of the statute?

Warren E. Burger:

Would that be the solution?

Robert A. Chaffin:

That would not be my solution, Your Honor.

Rather than an affirmance?

Robert A. Chaffin:

My solution, Your Honor, would be that the case be reversed and rendered with instructions–

I know.

But I put an “if”; I put a hypothetical to it.

If we concluded that their standard was wrong, would that be the appropriate disposition of the case?

Robert A. Chaffin:

–If that was the conclusion, Your Honor, I would certainly think that you would also have to add too that you could not consider conduct outside the period of time prescribed by the statute.

The only equitable conduct in this case was that the Petitioner himself went out and found reemployment.

Now, equitable conduct by its nature refers to some type of conduct that the Respondent in this case should have come forward with.

Your Honor, the record is absolutely clean of any conduct on the part of the Respondent that they did anything to help the Petitioner collect money that was rightfully due him.

In other words, the only equities in the case actually fall on the side of the Petitioner, with the exception of the one equity which the Respondent jumps on, Your Honor, and that’s that it’s a big penalty.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.