Marine Cooks & Stewards, AFL v. Panama Steamship Company – Oral Argument – March 02, 1960

Media for Marine Cooks & Stewards, AFL v. Panama Steamship Company

Audio Transcription for Oral Argument – March 03, 1960 in Marine Cooks & Stewards, AFL v. Panama Steamship Company

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Earl Warren:

Number 403, Marine Cooks & Stewards, AFL, et al., Petitioners, versus Panama Steamship Company, Limited, et al.

Mr. Jennings, you may proceed.

John Paul Jennings:

Mr. Chief Justice and may it please the Court.

We are here on certiorari to the Court of Appeals for the Ninth Circuit in a case in which that court has sustained a District Court order enjoining peaceful picketing by my client, a labor union.

The picketing protested the loss of jobs to members of the Marine Cooks & Stewards, the petitioner, and possible loss of more jobs in the future when a foreign vessel, the Nikolos, a vessel of Liberian registry, entered a trade previously occupied by an American vessel and resulting in the lay off of the American vessel and loss of jobs to the members of the petitioners’ union.

William O. Douglas:

They entered a trade?

John Paul Jennings:

The trade between the West Coast of Mexico and Tacoma, Washington.

This trade had been occupied by American vessel, the Ira Nelson Morris and that ship was laid off, the Nikolos went into the trade.

We also — we maintain that the case, it’s a case involving or growing out of a labor dispute within the meaning of the Norris-LaGuardia Act and therefore, the injunction was improperly granted.

We also challenge the jurisdiction of the Court which was predicated on a theory which we think this Court rejected in Romero against International Terminal Operating Company in 1959, that is that a — a federal question case under Section 1331 can be predicated upon a maritime tort, that was the theory of the Court of Appeals.

Now these are the facts.

The petitioner, Marine Cooks & Stewards AFL, is one of a number of American unions representing seamen on the Pacific Coast.

The Marine Cooks & Stewards represents the stewards department pursuant to a certification of the National Labor Relations Board.

And that it’s a party to a collective bargaining contract establishing wages, hours, and conditions and welfare provisions and pension plans, and things of that nature.

Now shortly before this case arose in June of 1957, Willoughby, the agent of the Marine Cooks & Stewards in the port of Seattle, Washington learned that the Nikolos was going to come in to the salt trade between the West Coast of Mexico and the Hooker Electro-Chemical plants in Tacoma, Washington.

Mr. Willoughby also learned that the Ira Nelson Morris, an American ship employing members of the petitioner, was laid off as a consequence of the entry of the Nikolos into the trade and that as a result, members of the various unions, including members of the petitioning union, were laid off.

Mr. Willoughby made inquiry of the Hooker Company in Tacoma to which the salt was consigned asking them whether they would permit him to put a picket line adjacent to the dock when the Nikolos came in.

He told them that he indented to picket the ship when it arrived and that he was like to get the ship dock, he would also picket it at the dock and he wanted to picket inside because he wanted to avoid the charge of a secondary boycott and picketing the Hooker Plant.

When the Nikolos arrived on the early morning of June the 10th of 1957, Mr. Willoughby in a small cabin cruiser called the Willoughby began circling around the Nikolos.

The little cruiser which he was using to circle around had a sign on it which said “Picket Boat” and the sign was later changed to a different and larger sign which said “AFL-CIO seamen protest loss of their livelihood to foreign flagships with substandard wages or substandard conditions.”

Willoughby, during the course of his circling, was invited to board the Nikolos and he talked to the master of the ship and he told him that the Nikolos was interfering with the coastal trade and that that was why he was picketing.

He also ascertained at that time that the wages on the Nikolos were about one-fifth, one-fifth of the wages on American ships under contract to the petitioning union.

Felix Frankfurter:

Have you — have told us about the Nikolos?

Have you told us —

John Paul Jennings:

The Nikolos is a ship of Liberian registry Your Honor.

It is owned by the Panama Steamship Company which is a Panamanian corporation and it was by virtue of time charter and sub time charter, ultimately time chartered by Sea Tankers Incorporated which is one of the respondents in this proceeding.

If I might — it’s rather involve factual situation and I —

Felix Frankfurter:

The ships weren’t owned by Hooker, weren’t they?

John Paul Jennings:

Pardon Your Honor.

Felix Frankfurter:

The ships weren’t owned by the consignee.

John Paul Jennings:

No Your Honor, they were not.

Felix Frankfurter:

The consignee was out of this contract?

John Paul Jennings:

No the consignee hadn’t made a contract so long as you have referred to it the chart which is Appendix B attached to our brief on page seven shows that the Hooker Company made a contract of affreightment with Trans Sea Carriers which —

Felix Frankfurter:

Page seven, did you say?

John Paul Jennings:

Page seven of the appendix Your Honor.

Felix Frankfurter:

I beg your pardon.

John Paul Jennings:

(Inaudible) it back.

Felix Frankfurter:

Yes.

Thank you very much.

John Paul Jennings:

The Hooker Company made this contract of affreightment for carriage of salt from Mexico to the Hooker plants, with Trans Sea Carriers Incorporated.

Trans Sea Sarriers is not a party to this case.

It is a foreign corporation and a wholly on subsidiary National Boat Carriers Incorporated which is a New York corporation, an American corporation.

National Boat Ccarriers has another fully on subsidiary, Sea Tankers Incorporated which is a respondent in this case and was a plaintiff below.

Sea Tankers Incorporated got the contract of affreightment by a subcontract for its sister subsidiary Trans Sea Carries and then Sea Tankers Incorporated time chartered the Nikolos from the North Atlantic and Gulf Steamship Company which chartered from the Panama Steamship Company.

So that ultimately it ended up with Sea Tankers the holding on subsidiary of an American corporation having both the contract to carry the salt and having the Nikolos under time charter.

A time charter in case Your Honor is not familiar with, it is a rental of all of the space aboard a ship.

Charles E. Whittaker:

(Inaudible)

John Paul Jennings:

Sea Tanker is also a foreign subsidiary, a wholly owned subsidiary of an American corporation.

Now on June the 13th of 1957 after this — the circling of the ship had gone on for three days.

The respondents filed their complaint on the civil side, seeking an injunction and damages.

After hearing testimony, the District Court granted a temporary injunction on June 19th of 1957.

The Marine Cooks & Stewards was enjoined from picketing the Nikolos or any other vessel registered under a foreign flag, manned by an alien crew and operated by the plaintiffs or any of them.

The district judge believed that the picketing constituted unlawful interference with foreign commerce with a friendly foreign nation and that the Norris-LaGuardia Act did not forbid an injunction.

The Court, however, made the following fact findings.

In finding 16, which is on page 35 of the record, the Court said, “Plaintiffs or some of them have entered into and are seeking other contracts of affreightment covering the carriage of light cargoes from Mexican ports to United States ports in the Puget Sound area and to Hooker Electro-chemical dock in Tacoma aboard the S.S. Nikolos and or other similarly registered unmanned vessels owned, operated, or chartered by plaintiffs or some of them.

This is a finding that the plaintiffs intended to go into this business in a larger scale which naturally would result in more loss of jobs for the petitioner union and the court so found.

Felix Frankfurter:

What was the substantive tort which the District Court sought the remedy by injunction.

John Paul Jennings:

The tort that, as I understood the District Court’s finding and what the Court of Appeals held was that this was an unlawful interference with foreign commerce.

Felix Frankfurter:

The mere fact that they — the mere fact of picketing.

John Paul Jennings:

The mere fact of picketing Your Honor.

Felix Frankfurter:

I — I — the people who were not – who had no what you call industrial relation to the ship or its crew.

John Paul Jennings:

That may have been one —

Felix Frankfurter:

But had — but (Inaudible) because they, it didn’t make any difference to them what crew was used, is that it?

John Paul Jennings:

I think that was part of it and I believe the Court also felt that because this was a foreign registered ship it is a Liberian registered ship.

Felix Frankfurter:

I understand that, even if you’re a Liberian or English or Dutch vessel there must be some substantive basis for interference, the substantive basis was picketing.

John Paul Jennings:

Yes Your Honor.

Felix Frankfurter:

Against the use of non-American crew, is that it?

John Paul Jennings:

Against the use of this ship.

Felix Frankfurter:

— which had a foreign crew and displays the American ship —

John Paul Jennings:

That’s right.

Felix Frankfurter:

— with an American crew.

John Paul Jennings:

That’s right.

Yes sir.

William J. Brennan, Jr.:

(Inaudible)

John Paul Jennings:

There was no fraud, no violence —

William J. Brennan, Jr.:

(Inaudible)

John Paul Jennings:

The protest was substantially at the picket signs, that they protested the lost of employment for their membership as a result of the use of this foreign registered ship employing —

(Inaudible)

John Paul Jennings:

Yes Your Honor, employing foreign seaman at substandard wages and conditions.

Felix Frankfurter:

Who – who in – the contract affrieghtment was between whom and who?

John Paul Jennings:

The contract —

Felix Frankfurter:

Who, in other words, who — who choose this Liberian carrier instead of an American carrier with an American crew subject to the —

John Paul Jennings:

The Sea Tankers Incorporated which is one of the plaintiffs here had the choice and they selected the Nikolos to carry the salt.

Felix Frankfurter:

Is there any — is there anything in any American legislation that prevented that choice or crowned on that choice?

John Paul Jennings:

I know nothing in any legislation which says either they could or could not, nor do I know of anything that said we could or could not picket because they made a choice.

Felix Frankfurter:

No I just want to know — salt of this — clearly on which the injunction was sought, any — any consignee in New York can select, can he under our law if he buys stuff from abroad or from —

John Paul Jennings:

He would book space on whatever ship he desired to have.

Felix Frankfurter:

Yes.

He can book space on whatever ship comes his way.

Is that right?

John Paul Jennings:

That’s correct.

Here the —

Felix Frankfurter:

And so the injunction was in the statement of Justice Brennan that they wanted — they were hurt, they felt injured by a carrier who was not subject to the (inaudible) Act or the American Seamen’s Act, is that right?

John Paul Jennings:

That’s one of the problems.

The Sea Tankers Incorporated is a foreign corporation.

The ship is a foreign ship.

And many are quite —

Earl Warren:

Would it make any difference — would it make any difference in this case if they didn’t have a question of substandard wages, and if it was just a question of a foreign ship as against an American ship?

I mean —

John Paul Jennings:

I —

Earl Warren:

Would the principle be any different?

John Paul Jennings:

I don’t think the principle of the application of the Norris-LaGuardia Act would be any different Your Honor but we would run into a somewhat different question as to the purpose of the picketing, there would have to be some legitimate objectives, some legitimate —

Felix Frankfurter:

Well they don’t want them but (Inaudible).

When you say substandard, you mean just by hour, even on extended?

John Paul Jennings:

Judged by the standards on American ship which were in competition.

Felix Frankfurter:

It’s not for the ship itself as complying with the laws of the neglect, is that right?

John Paul Jennings:

As far as I’m aware, the —

Felix Frankfurter:

That isn’t in question?

John Paul Jennings:

No, that’s not in question.

But answering Your Honor’s question more at length, it seems to me that the Norris-LaGuardia Act would not apply in any case in which — or would apply in any case in which a foreign ship was picketed because the Norris-LaGuardia Act withdraws the injunctive remedy and says that a United States District Court may not in a labor dispute, use a conjunctive remedy.

That is not to say and I didn’t wish to infer that the foreign shipowner would be without a remedy.

He would have many remedies other than the injunctive remedies such as a — possibly a suite for damages in a diversity case or perhaps claim an injunction in a diversity case.

Felix Frankfurter:

But he couldn’t — couldn’t —

John Paul Jennings:

Not in Norris-LaGuardia Act.

I said he should —

Felix Frankfurter:

Yes.

It doesn’t make any difference with this if this wasn’t enough.

John Paul Jennings:

No.

Potter Stewart:

Did he went into the state court?

John Paul Jennings:

If he went into the state court, he could go in and claim damages and he —

Potter Stewart:

(Inaudible)

John Paul Jennings:

I guess he could under the savings clause also claim injunctive relief.

(Inaudible)

John Paul Jennings:

Unless they had the Norris-LaGuardia Act in whatever state court he might go —

Felix Frankfurter:

Well but the answer — the answer to the Chief Justice’s question depends on the cons — it’s one of the issues in this case.

It depends on the construction of the Norris-LaGuardia Act, doesn’t it?

John Paul Jennings:

That is correct Your Honor.

Felix Frankfurter:

Alright.

John Paul Jennings:

Now –-

Charles E. Whittaker:

You wouldn’t argue why I take it, Mr. Jennings that the Norris-LaGuardia Act does not apply outside our country.

John Paul Jennings:

Oh no, Your Honor.

This is no case in which we’re playing back to the territorial application for any American law.

Charles E. Whittaker:

What about the rule of law that ships on our waters, foreign ships or foreign territory?

John Paul Jennings:

We were not trying to apply any law to the ship itself, the law that we applied was the law limiting the jurisdiction of the United States District Court when the foreign corporation came into that court asking for a relief.

Charles E. Whittaker:

Yes, but —

John Paul Jennings:

We did not try to interfere in anyway with the internal economy of this ship.

Charles E. Whittaker:

But could it be a labor dispute within the meaning of our law if it happened in foreign territory?

John Paul Jennings:

Well —

Charles E. Whittaker:

If the controversy is one that happened in foreign territory, could it be a labor dispute within the meaning of Norris-LaGuardia Act?

John Paul Jennings:

Now that the ship was operating and — foreign commerce and we picket it outside the United States, obviously our laws were not affirmed.

Charles E. Whittaker:

Well I have assumed that the decks of a foreign vessel with foreign areas though in our waters?

(Inaudible)

John Paul Jennings:

I said if —

(Inaudible)

John Paul Jennings:

The problem would be —

(Inaudible) If that I say, if we were picketing outside of this country, the reach of the jurisdiction of a federal court will not go outside of our country so you couldn’t effectively enjoin what was going on outside.

Felix Frankfurter:

You could —

John Paul Jennings:

Possibly you could if you have the people here in this country, yes.

Earl Warren:

Mr. Jennings may I interrupt to just one more — once more to ask you if — it would make any difference in principle in this case if the consignee, I mean the charters were all foreign corporations instead of Americans, would that bear on it at all?

John Paul Jennings:

I don’t think I would make any difference in the results Your Honor.

Earl Warren:

Yes.

John Paul Jennings:

The contention is made by the — the respondents that even an American corporation could charter a foreign ship and use it and that if the union picketed that would be not a labor dispute and therefore the Norris-LaGuardia Act would not apply.

Earl Warren:

Well as I understood that this is an America charter, isn’t it?

John Paul Jennings:

Well the National Boat Carriers is an American corporation, the Sea Tankers Incorporated is wholly owned subsidiary, but Sea Tankers is a foreign corporation even though owned by an American corporation.

Felix Frankfurter:

And it is the charter?

John Paul Jennings:

It is the charter, yes Your Honor.

Earl Warren:

I see the —

John Paul Jennings:

So that it is a foreign corporation, I believe the Liberian Corporation.

Felix Frankfurter:

But ultimately the question as indicated I was intimated by Justice Brennan’s question, Norris-LaGuardia Act is an act limiting the jurisdiction of Federal District Court.

John Paul Jennings:

That’s correct Your Honor.

Felix Frankfurter:

And the question therefore is what it is that that Act limits that court?

As you indicated it might be the so far as (Inaudible) is concerned it is that people in front of them have enjoined from picketing in Panama or anywhere else, couldn’t it?

I mean as a matter of physical power.

John Paul Jennings:

Possibly so Your Honor, yes.

The issue as we see it is whether this is a case involving or going out of a labor dispute within the meaning of the Norris-LaGuardia Act.

If it is we say that act supplies the jurisdiction of the Federal Court is limited, it may not grant an injunction.

And as I pointed out earlier the intention of the respondents is that because the ship was a ship of Liberian Registry, it was not — this was not a labor dispute within the meaning of Norris-LaGuardia Act.

We also of course have the second question of whether the decision of this court in Romero would prevent the assertion of jurisdiction on their federal question jurisdiction where the claim is that the conduct of the union was a maritime towards under federal law.

Felix Frankfurter:

But if it — if it is within Norris-LaGuardia Act, that’s the limitation upon every district court, isn’t it?

John Paul Jennings:

Yes Your Honor and if that be true then the case must be reversed.

Felix Frankfurter:

Then you haven’t any — you needn’t worry about the other —

John Paul Jennings:

We don’t need to worry about —

Felix Frankfurter:

(Inaudible)

John Paul Jennings:

No Your Honor.

Now before discussing the applicable law, I would like to comment on one matter.

Last Saturday I read a brief filed by the United States as amicus curiae in which they thought that maybe we would challenge the Liberian Registry of the Nikolos.

Now we do not challenge the Liberian Registry of the Nikolos.

We don’t question the Liberian Registry of the ship and as we view it, the Liberian Registry of this ship is not controlling in the decision of the case.

So that I think — I think we can place that here at rest.

We don’t brace any question as to the Liberian Registry of the ship.

John Paul Jennings:

Now with respect tot the application of the Norris-LaGuardia Act —

Felix Frankfurter:

I’ve seen the Government brief.

They’re just concerned with that question.

John Paul Jennings:

That was the sole question Your Honor.

They had some letter from the Liberia which said “Maybe we were going to challenge it”.

Felix Frankfurter:

You mean they’re not dealing with the other question —

John Paul Jennings:

No Your Honor.

No, they’re — they’re not concerned at all with the other questions.

William O. Douglas:

Here’s an extra copy, Mr. Jennings.

John Paul Jennings:

Now the — I’m sure Your Honors are familiar with the language of Section 13 of the Norris-LaGuardia Act and I think it fits the facts that we have in this case where we see the American union protesting what amounted to unfair competition resulting in loss of jobs to the American union by the use of this foreign registered ship in this trade which had formerly been occupied by American ships and with the prospect as the Court found that other foreign ships are going to come in and more jobs are going to be lost.

Subsection (a) of Section 13 of the Norris-LaGuardia Act says that a case shall be held to involve or to grow out of a labor dispute when the case involves persons who were engaged in the same industry.

Industry here is the same in maritime industry, transportation by sea.

Same industry trade, craft, or occupation and the occupation is the same.

The foreign seaman on the Nikolos, in effect, ousted the American seamen Ira Nelson Morris who were working in this trade so that the trade, craft, or occupation is the same and the union certainly has a very direct interest in the job to its members.

It is also provided that a case shall be held to involve or grow out of a labor dispute, when it involves any conflicting or competing interest in a labor dispute of persons participating or interested therein.

And we say that this section of the Norris-LaGuardia Act also applies to our case, but for this additional reason, this is a labor dispute within the meaning of that Act because we have a direct interest in the — what this — foreign ship did to the jobs of the American seamen and Subsection (c) of Section 13 defines a labor dispute as including any controversy concerning terms or conditions of employment regardless of whether or not the dispute can stand on approximate relation of employer and employee.

And of course, one of the big problems here is that the foreign ship was operating with one-fifth of the wage cost of the American ship.

So that by use of the foreign corporation the Foreign Sea Tankers Incorporated was able to make a profit and to drive the American ships out of the trade.

And the —

William J. Brennan, Jr.:

Objecting to that, the (Inaudible)

John Paul Jennings:

Sure Your Honor.

William J. Brennan, Jr.:

That is one (Inaudible)

John Paul Jennings:

I think that question has not been argued Your Honor but in my view it would.

William J. Brennan, Jr.:

(Inaudible)

John Paul Jennings:

Yes Your Honor.

I would come in to the Benz case later.

William J. Brennan, Jr.:

It was not (Inaudible)

John Paul Jennings:

It might not be except that there is this very difference.

There is this great difference between this case and Benz.

In Benz the picketing union was picketing on behalf of the crew members on a foreign ship in a dispute between the foreign employer and the foreign crew.

John Paul Jennings:

Here they are picketing on behalf of their own members.

In Section 7 of the Taft-Hartley Act —

William J. Brennan, Jr.:

Well let me – (Inaudible)

John Paul Jennings:

It might apply to this joint.

William J. Brennan, Jr.:

Maybe this may lead to something but this is not the protection (inaudible).

As a matter of fact, that scheme is not related to the purpose of the (inaudible)

John Paul Jennings:

Yes Your Honor.

We think that — we think the — we are not arguing preemption problem here.

We don’t claim preemption at this point.

We say that this is a question only whether this is a labor dispute and whether or not the Norris-LaGuardia Act should apply and the language of the Norris-LaGuardia Act is very clear.

It says “No court of the United States shall have jurisdiction to issue on a temporary injunction or any restraining order in a labor dispute or the language actually is in a case involving or growing out of, involving or growing out of their labor dispute to prohibit peaceful picket of the sort that the union engaged in here and I wish to emphasize again that nothing that the union did was anymore than a protest of the bringing of this foreign ship in.

They circled the Nikolos and before the Nikolos docked, the injunction was granted.

So that all we had was the circling of the Nikolos by the Willoughby, the small cabin cruiser.

There was no fraud, no violence, no nothing.

There was not even any contact between Mr. Willoughby and the crew of the Nikolos except that he spoke to the master but he spoke to no one else except —

Felix Frankfurter:

May one assume that this – prior to the Norris-LaGuardia Act, this could have been enjoined.

John Paul Jennings:

I think prior to the Norris-LaGuardia Act on the construction of the courts gave the Clayton that would have been enjoined because the employer-employee relationship was lacking.

Felix Frankfurter:

Well doesn’t the foreign commerce aspect enter into what would have been enjoinable prior to the Norris-LaGuardia Act?

John Paul Jennings:

Possibly so.

Felix Frankfurter:

I think one has to decide possibly come to Norris-LaGuardia as I do.

John Paul Jennings:

That would be a preliminary question.

That is even without the Norris-LaGuardia, would this conduct be permissible and could it be enjoined even aside from the prohibitions of Norris-LaGuardia.

I think that their interference with foreign commerce has never been considered to be a tort as such.

William J. Brennan, Jr.:

The observation (Inaudible)

John Paul Jennings:

Pardon me Your Honor.

William J. Brennan, Jr.:

Well does that mean (Inaudible)

John Paul Jennings:

Yes Your Honor.

Yes I’ve come to the Romero.

William J. Brennan, Jr.:

Other we (Inaudible)

John Paul Jennings:

Under Romero theory, there could not have been — a case could not have been entertained at all.

Felix Frankfurter:

Does Romero means that you couldn’t have entertain it on any side of the Court?

John Paul Jennings:

Well you could entertain it on the admiralty side and in that event historically, I believe, has not granted an injunction.

Felix Frankfurter:

You got – that’s the problem there.

John Paul Jennings:

Yes Your Honor.

Felix Frankfurter:

Well you’re full of problems.

William O. Douglas:

Well if you got into admiralty you’d get out pretty fast.

I mean you have no — you have no remedy in admiralty.

That’s what you —

John Paul Jennings:

In admiralty the remedy would be the regular admiralty remedy of damages.

William O. Douglas:

But no — no remedy for injunction?

John Paul Jennings:

No injunctive remedy.

No, Your Honor.

Mr. — I should say the respondents counsel for the first time argues in this Court that admiralty might have granted an injunction and therefore, this might be sustained in that ground and I will mention that problem briefly.

Now this Court as, Your Honors are aware has not given the Norris-LaGuardia Act a narrow or restrictive interpretation.

The narrow restrictive interpretation of the Clayton Act was removed by the Norris-LaGuardia Act in disputes of the characters that we have here where the picketing protests what the union considers to be unfair competition has been held to involve a labor dispute within the meaning of a Norris-LaGuardia Act.

The New Negro Alliance case and most closely in point, the Milk Wagon Drivers’ Union case in which this Court considered the picketing by a union which picketed retail outlets of dairies which used the so-called vendor system of milk distribution.

That is the dairies instead of employing their own employees to deliver the milk used independent contractors.

And the union considered that the use of the independent contractors depressed wages and conditions and prevented union employees from getting jobs and restricted the opportunities, the job opportunities of union members.

This Court refers to the Court of Appeals which had held that no labor dispute existed there and reversed the order granting the injunction holding that reading the Norris-LaGuardia Act as Congress enacted it clearly this type of conduct constitutes a labor dispute.

So that what we have here is a case which we say falls within the express language of Norris-LaGuardia and we believe that the respondents must bear the burden of establishing that in some fashion, Norris-LaGuardia Act should not apply solely because a foreign ship was picketed and I think that this is the posture of the case here.

Now —

Felix Frankfurter:

Of course Railway Labor Act cases in this Court showed, things that situation maybe within the kind of appropriate analysis that you made of the language and yet not be limited by it.

I’m asking, I know you are (inaudible).

John Paul Jennings:

Yes sir.

That’s correct, Your Honor.

Now in our case the — what the petitioner was doing was peacefully picketing this ship in protest against the fact that this ship was in a trade formerly occupied by an American ship and the union people are out of work.

So —

Charles E. Whittaker:

I wonder if as matter of law and American union could have a labor dispute with the employees with the foreign government or the foreign ship.

What do you think of that?

John Paul Jennings:

I would say — you mean whether we could have had a dispute with the people working on the ship?

Charles E. Whittaker:

Who had signed on in Liberia?

John Paul Jennings:

Our dispute was with the parties to this case, the owner of the vessel and the charter Sea Tankers which had brought the vessel and the employees were — were just on the vessel and they were the instruments, if you wish, but they — they had no dispute with the employees on the ship.

Charles E. Whittaker:

Oh but you — did you have a dispute with anybody or could you have a “labor dispute” within the meaning of the Norris-LaGuardia Act with all of these of the foreign ships in our waters.

John Paul Jennings:

That I think is what the respondents argue.

They say not — that you may not have a labor dispute with a foreigner.

They recognize that a foreigner, when he becomes a litigant in an American court, he is in no different position than in America.

But they say that because these disputes involved a foreign registered vessel, it is not a labor dispute.

I find nothing in the Norris-LaGuardia Act nor in any decisions of this Court which would lead to such a conclusion.

That is their contention.

Felix Frankfurter:

I’m not saying that this case should have to be the problem, but when — when we’re in the realm of foreign relations when I think — think about them and the — the country of — of the national of the charterer might the law of the country of the national — the charterer might require him to charter, to employ merely citizens of the country.

In fact as we — we strict the coast by straight, wouldn’t there be, they might say, I mean, I know what country this charterer was a citizen.

John Paul Jennings:

It was wholly owned subsidiary of the American corporation.

It is a foreign corporation Liberian.

Felix Frankfurter:

That foreign corporation might be required by the law of the country.

They have only seamen of its enactment and then you couldn’t say well we’ll have a controversy between the charter and the American — the American union.

You could possibly — you could — you could be ready for it.

It would be a little odd to say that the unions can have a labeled controversy with the law of the country of the charter forbids.

John Paul Jennings:

I don’t know of anything in the record which would indicate that.

Felix Frankfurter:

No, no, no but you’ve indicted all these now, can’t you, because a lot of countries have a lot of (Inaudible) legislations that we have.

That’s true isn’t it?

John Paul Jennings:

That is true.

So far as the Sea Tankers is concerned the argument, as I understand you, would be that if as a Liberian corporation might be required to employ Liberians.

Felix Frankfurter:

The Liberian law did what it did.

I’m not saying it is good but —

John Paul Jennings:

Well actually —

Felix Frankfurter:

There are a lot of restrictive — they’re dealt with good deal of restrictive legislation by various countries to require internationals to deal with the home — employ the home market as it did.

John Paul Jennings:

Well —

Felix Frankfurter:

I’m not saying that it is not true.

John Paul Jennings:

It isn’t true, Your Honor, because we have some Liberian ships under contract.

Felix Frankfurter:

Well I’m not —

William O. Douglas:

Liberians on special occasion — treaty with Liberia which bears on this problem at all.

John Paul Jennings:

There isn’t any treaty that says anything about the picket situation we have here.

There is a treaty part of it which is quoted in the respondents’ brief and other sections in our brief treaty of commerce, friendship and so forth which gives Liberian vessels the same rights in our courts that American vessels have in Liberian ports.

And they have the same right to go to Court of Justice in this country that Americans have to go to court in this country.

They don’t get any greater right, they have the same.

They have the same right as American ships and they have the same rights in our American courts, but no difference.

Felix Frankfurter:

With no typical relation.

John Paul Jennings:

Yes Your Honor.

No great.

They aren’t given any — any more rights.

Felix Frankfurter:

Liberian ships coming here are the same rights that our ships have been going to as against this.

John Paul Jennings:

Well that’s what the treaty says.

There are reciprocal obligations.

In our Court say, they get the same treatment as our ships and it says in their ports that our ships get the same treatment as theirs.

Now what we have here, Your Honor, is the case in which an American union is enjoined for exercising its right to protest peacefully what was unfair competition to its membership and it should be recalled that in this case, although the respondents denied the application of the Norris-LaGuardia Act to this dispute and that is a federal law, their entire case before this Court is predicated upon the theory that what we did, the peaceful picketing, was a maritime tort under federal law and they predicate their entire claim of jurisdiction upon the ground that this is federal question of jurisdiction.

That this is a case under the laws of the United States that they are in a difficult logical position in maintaining that they have so far as jurisdiction is concerned and so far as the establishment of a maritime tort is concerned, reliance upon American law, upon federal law, but denied the application of the Norris-LaGuardia Act.

There are a few cases in which this Court has held of what normally would be considered to be a labor dispute, it is not a labor dispute and Mr. Justice Frankfurter referred to some of those cases.

In the United Mine Workers’ case which so far as I have been able to find is the only case in which a statute, the Norris-LaGuardia Act was not applied solely on the basis of the parties involved.

The Court said that a dispute between the United States and its own employees who became the employees of the United States when the Government took over the mines was not a labor dispute within the meaning of the Norris-LaGuardia Act.

The reasons which have impelled this Court to hold that the Norris-LaGuardia Act did not apply to the United States of sovereign certainly do not apply here.

There is another line of cases in which the Norris-LaGuardia Act has not been applied and in those cases, what this Court said was that if the Norris-LaGuardia Act was the only one of several statutes which governed and the mandate of the other statute requires certain conduct, the Norris-LaGuardia Act will not stand in the way of an injunction enforcing the mandate of the other statute.

For the example the Railway Labor Act and the National Labor Relations Act were interpreted to forbid discrimination and this Court enforcing that policy granted — approved an injunction which enforced the mandate of those statutes.

This Court also in the Textile Workers’ case enforced the mandate of the Taft-Hartley Act which required enforcement of collective bargaining contracts and suits to enforce and approved an order directing what amounted to compulsory arbitration under the provisions of an agreement in which the Union agreed to arbitrate the grievance.

Felix Frankfurter:

The Taft-Hartley Act did not — the Taft-Hartley Act specifically exempt — limits or provides as a non applicability of the Norris-LaGuardia Act over yet?

Does it say —

John Paul Jennings:

Yet it says that Norris-LaGuardia is modified only to the extent of permitting the National Labor Relations Board itself to go into a federal court and secure an injunction.

Felix Frankfurter:

But they’re — are they (inaudible) in terms?

John Paul Jennings:

Yes Your Honor.

William J. Brennan, Jr.:

In the 1959 Amendment carried that forward —

John Paul Jennings:

Yes Your Honor.

William J. Brennan, Jr.:

— to be more specifically.

John Paul Jennings:

Yes Your Honor.

In any case involving the claim of violation of the Taft-Hartley Act, only the National Labor Relations Board can secure an injunction.

Felix Frankfurter:

I think that’s the law who didn’t always concern.

John Paul Jennings:

Now as I say the problem here is to interpret the intention of Congress in this Court in the cases that I have referred to has said where there is a congressional mandate which looks in a particular direction; this Court will enforce that mandate despite the prohibitions of the Norris-LaGuardia Act.

I have searched in vain for any mandate which says that a foreign registered vessel is to be treated any differently in the case under the Norris-LaGuardia Act in American vessel or that a foreign registered vessel is to be given any rights which an American vessel doesn’t have.

That the — if there’s any test at all that the nationality of the registration of the vessel has anything to do with the application of the Norris-LaGuardia Act.

William J. Brennan, Jr.:

In other words, they sought an American court remedy in the State —

John Paul Jennings:

Yes Your Honor.

William J. Brennan, Jr.:

That’s your point.

And unless there’s something which gives them a status different from an American properly speaking the same relief in American court to the same extent the Norris-LaGuardia Act should apply, that’s your point.

John Paul Jennings:

That is correct.

Precisely correct, Your Honor.

Now the Court of Appeals was in a very — pardon me, Your Honor.

Felix Frankfurter:

A like argument was made in Norris — in the Norris situation.

John Paul Jennings:

I think not Your Honor.

Felix Frankfurter:

Well if that — that we’re not enforcing an extraterritorial, that was a suit brought in America to enforce right enforced on American soil.

John Paul Jennings:

But the rights there were the rights of a foreign seaman on a foreign ship.

William J. Brennan, Jr.:

Yes.

Felix Frankfurter:

I’m not saying that this is that case.

All I’m saying is that that decision could have gone the other way that are doing anything except enforcing things right here in America on American soil.

John Paul Jennings:

That’s correct but again the Jones Act is a — an act creating substantive rights.

The Norris-LaGuardia Act is a limitation on the jurisdiction of the courts.

William J. Brennan, Jr.:

Well and there was a history in the Jones Act which supported the conclusion that it didn’t cover foreign seaman anyway, wasn’t it?

John Paul Jennings:

That’s correct and it certainly as the Court pointed out in the (Inaudible) case would have been improper.

Felix Frankfurter:

But it’s the large legal basis that the consideration that we impose the considerations of our relation with the foreign countries.

John Paul Jennings:

Well, that’s one thing but in the — in that case —

Felix Frankfurter:

I’m not saying (inaudible) these are the relevant factors that one has to consider and that’s one of them.

John Paul Jennings:

That’s correct, Your Honor but may I point out that in that case, if the seaman had been able to get a remedy in this Court for that tort, he might have gotten the difference or a greater remedy than it could have been — he sued in the courts of his own nation, and here we are not troubled with that point at all because —

Felix Frankfurter:

One might say to you one is troubled by the fact, you’re trying to prevent (inaudible) national for to have friendlier relation with this country under an international law have a right to do come in and do business, you’re trying to prevent them from coming here.

William J. Brennan, Jr.:

You’re trying to prevent their resort to our courts on any different terms than American corporations do resort to our courts —

John Paul Jennings:

Well I was going to state, Your Honor, that that is precisely correct.

We don’t say that we might not be responsible in tort damages if what we did was wrong.

Well at least it was not before the Court here.

The question is whether the Norris-LaGuardia Act forbad in injunction.

Felix Frankfurter:

I understand that but all I’m saying is that in construing that, one has to consider the implications and one of them is that this is the effective way of preventing vessel of making the (Inaudible) of unfriendly terms from coming here curtailing their rights, limiting their rights, otherwise, you wouldn’t want the injunction.

That’s why you want the injunction.

John Paul Jennings:

I suppose that’s true, Your Honor, but we don’t know that an American shipowner who might be picketed in the foreign court in Liberian court will get an injunction, maybe he could get damages but I don’t think the injunctive remedy in labor disputes is universally applied.

William J. Brennan, Jr.:

Well say, Mr. Jennings, if this had been a ship of American registration and you had precisely this dispute, would you make any different argument than you are now?

John Paul Jennings:

So far as Labor dispute is concerned, no Your Honor.

William J. Brennan, Jr.:

Oh, and as to the jurisdiction of District Courts.

John Paul Jennings:

As to the jurisdiction, it would be the same.

William J. Brennan, Jr.:

It would make this quite a bit.

John Paul Jennings:

Our argument would be the same because we said the burden is on the other side to show that because a foreign registered ship is involved you apply a different rule.

Felix Frankfurter:

But the same thing with reference to different situations isn’t the same thing.

I haven’t any view against it.

John Paul Jennings:

I understand Your Honor.

Felix Frankfurter:

All I am saying is one would see problems with practical problems in order to solve them adequately and it does make a difference that the result of this is be given effective remedy against nationals of friendly nation who have perfect rights to be — have a perfect right to send ships that you were taking measure which is regarded as a tort and the question is what remedy should we availed off which to recognize there might be some other remedy, what remedy maybe availed of in order to remedy that cause —

John Paul Jennings:

That’s correct.

Felix Frankfurter:

In fact that an American shipowner can get a remedy and the injunction doesn’t mean there’s a (Inaudible) Norris-LaGuardia Act must read seems to include this.

John Paul Jennings:

But I would say that the American shipowner obviously could not obtain an injunction in this case so what it amounts to is a claim that the American competitor of this foreign ship —

Felix Frankfurter:

Well it could not —

John Paul Jennings:

— could not obtain an injunction.

Felix Frankfurter:

The restriction doesn’t follow that the restrictions upon American shipowner from that that it follows that the same restriction applies to a foreign shipowner, it doesn’t follow at all?

John Paul Jennings:

No.

We think so far as the Norris-LaGuardia Act is concerned, so far as —

Felix Frankfurter:

Well I’m not saying that’s right.

All I’m saying is the fact that an American shipowner couldn’t get relief by injunction, doesn’t follow few degrees that a foreign shipowner fits because other factors didn’t.

John Paul Jennings:

It could very well Your Honor except that I find no — no way that you can’t find a way out of the Norris-LaGuardia problem, it seems to be explicit.

It makes no exception —

Hugo L. Black:

Well (Inaudible)

John Paul Jennings:

Pardon me Your Honor.

Felix Frankfurter:

Three judges below found a way out.

There are —

John Paul Jennings:

They did it upon the basis, Your Honor.

Felix Frankfurter:

You have to go there, you will not have from bigger basis.

John Paul Jennings:

They did it solely upon the ground of the Benz case which I would like to discuss briefly and this is the distinction between this case.

Felix Frankfurter:

I’m not saying they’re right.

All I’m saying is that there is no logical compulsion in the words of the Norris-LaGuardia Act that it must be applied to the carrier of friendly foreign nation.

John Paul Jennings:

In the Benz case, this Court held that a damage action for what was a tort under the law of Oregon was not preempted by the remedy presumably provided by the Taft-Hartley Act.

The case there was a damage action, an action for damages.

Here we have an action for an injunction.

The claim there was a diversity case based on state law and here we have a claim based exclusively on federal law with jurisdiction indicated on the laws of the United States.

The dispute in the Benz case was between the foreign crew and the foreign owners.

It was internal to the ship.

Here the dispute is between an American union and two foreign corporations which seek to bring a foreign ship into this trade and to the union members of their jobs.

Felix Frankfurter:

The dispute really was, Mr. Jennings; the dispute really was between the desire of the American union not to have a complication from seamen who have lower standards than our own.

John Paul Jennings:

We felt that the — the foreign shipowner could bring his vessel in, in this trade which was historically American and that the trade would be lost entirely to American employers because they paid five times as much.

Felix Frankfurter:

That’s what is all about.

John Paul Jennings:

And the — the business is gone and we think that we have the right to make that protest.

Now, may I point out also that in our case the Union picketed on behalf of its own members and in the Benz case, as this Court pointed out in its decision, the union picketed on behalf of the foreign crewmen in a dispute of the foreign crewmen with the foreign employer.

That dispute was internal to the economy of the vessel, our dispute is not.

That dispute, this Court said involved interference with the internal economy of the vessel and the Court felt that if the representation procedures of the Taft-Hartley Act and the other procedures of the Taft-Hartley Act were applied to the internal economy of the foreign vessel that that would be, as I believe the Court said, running interference in a very delicate field of international relations, but we do not have any problem of the internal economy of this vessel.

The dispute did not concern relations between the foreign crew and the foreign employers, the dispute was external.

Charles E. Whittaker:

Don’t you have – don’t you have a dispute over internal conditions on this Liberian ship?

Weren’t you complaining about —

John Paul Jennings:

We were complaining —

Charles E. Whittaker:

— these conditions, leaving conditions on it and so forth?

John Paul Jennings:

Not the leaving conditions Your Honor.

The complaint was that the conditions which existed on this ship were substandard that this was one-fifth of the wages paid on American ships which in effect was unfair competition.

John Paul Jennings:

That the — as I told you the picket signs that we broadcast, the use of foreign vessels with substandard wages and substandard conditions —-

Charles E. Whittaker:

(Inaudible)

John Paul Jennings:

No Your Honor.

That was involved in the Benz case but it was not involved here.

That was solely that it was one of the problems in the Benz case not here.

Now in the Benz case, the Court held that the Taft-Hartley procedures did not apply to resolve the dispute which was internal to the vessel.

In our case we say that the situation is entirely different.

We’re talking about a statute which limits the jurisdiction of a United States District Court.

We, therefore, urge that the Norris-LaGuardia Act limited the jurisdiction of the Court and prevented granting of the injunctions.

Now on the question of jurisdiction, we think that the Romero case is precisely in point.

Here as there the plaintiff wants a remedy which he doesn’t think he can get in admiralty.

In the Romero case, he wanted to sue on a civil side claiming federal question jurisdiction and to get a jury trial.

We’ll recess now, Mr. Jennings.