Marine Cooks & Stewards, AFL v. Panama Steamship Company

PETITIONER:Marine Cooks & Stewards, AFL
RESPONDENT:Panama Steamship Company
LOCATION:Superior Court of Bibb County

DOCKET NO.: 403
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 362 US 365 (1960)
ARGUED: Mar 02, 1960 / Mar 03, 1960
DECIDED: Apr 18, 1960

Facts of the case

Question

  • Oral Argument – March 02, 1960
  • Audio Transcription for Oral Argument – March 02, 1960 in 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

    Earl Warren:

    — Marine Cooks & Stewards, AFL, et al., Petitioner, versus Panama Steamship Company, Ltd., et al.

    Mr. Mosser, you may proceed with the argument.

    John D. Mosser:

    Thank you, Mr. Chief Justice.

    May it please the Court.

    The position of the respondents here is that there is no labor dispute within the meaning of the Norris-LaGuardia Act so as to deprive the District Court of jurisdiction to issue the interlocutory injunction which it did issue.

    I would like to make clear at the outset that the basis upon which we make that contention is that the dispute was over terms and conditions of employment, a board of foreign flag vessel, only transiently in a United States court.

    It is not a claim of special position for a foreign shipowner and some of the colloquy particularly between counsel and Mr. Justice Brennan yesterday, seemed to me to be turning on the question of a foreign shipowner in an American court.

    I’d like to point out the difference between the owner of a foreign ship and a foreign shipowner.

    One looks to the corporate owner, the other looks to the ship.

    It might well be that you would have an American owner of a foreign flag vessel and we believe that such an American owner in court would be entitled to the same relief here as these respondents are.

    It is not the position as a foreign shipowner, but as the owner of a foreign ship which centers around the question of whether there is a labor dispute because of the terms and conditions of employment aboard that ship.

    Now, there is some question as — in my mind as to just what the petitioners are claiming the labor dispute here is.

    In response to a question for Mr. Justice Whittaker yesterday, counsel stated that there was no dispute with the crew members.

    In the reply brief at page 5, the statement is made in the first full sentence at the top of the page after the quotation.

    The petitioners in picketing were not seeking to change wages, hours or working conditions on the S. S. Nikolos.

    In response to a question from the Chief Justice yesterday, counsel said that it would make no difference so far as the Norris-LaGuardia Act was concerned, if the wages here were not far below the American standar, which their members have aboard competing American flagships.

    In fact, the position that counsel took yesterday was that they were here seeking to shut this foreign flag vessel out of this trade.

    Now, as counsel admitted in —

    Felix Frankfurter:

    But if this weren’t — if — let’s forget, for the moment, the foreign relation aspect of the problem, would have — would picketing by union in order to extend a membership by shutting out — shutting out in the market on the — on the Court, let’s forget the foreign aspect, ships that carry foreigners and therefore not members of the American union, would that not be a labor dispute?

    John D. Mosser:

    I believe not, Mr. Justice Frankfurter.

    I think that if they are seeking to represent the crew or to bargain with the owner over wages, hours or working conditions.

    Felix Frankfurter:

    Or to enlarge — or to enlarge their clientele by having ships that — with crews that are eligible and potentially would become members of their — of their union.

    John D. Mosser:

    If —

    Felix Frankfurter:

    How does that different from the — the labor dispute which seeks to enlarge the membership of the union?

    John D. Mosser:

    Well, if they were seeking to enlarge the membership of the union, if they were seeking to become the agent for these people and to have them join the union —

    Felix Frankfurter:

    Not for these people because they can’t become members, they can’t practically, I don’t know about legally, practically, become bargaining representatives of these people for their foreigners.

    John D. Mosser:

    Then —

    Felix Frankfurter:

    They want to — if — if foreign carriers with foreign crews can’t come into the port of Seattle or whatever it is, then the argument is that their hope is that business would be taken over by American-run ships.

    John D. Mosser:

    I — I don’t think it would be a labor dispute, Your Honor, anymore than, let me put this example.

    The railroads have taken a great deal of business away.

    John D. Mosser:

    In fact, the intercoastal American trade has practically dried up.

    Now, suppose this union were to go out and picket the railroad with the intent of stopping the railroad from loading all intercoastal — all transcontinental cargo, in order that American ships would have more business so that their members would have more jobs, I don’t think that would be a labor dispute.

    Felix Frankfurter:

    Why don’t you read the specific definition of what labor dispute is in the Norris-LaGuardia Act?

    That’s what the case must turn on

    John D. Mosser:

    I’ll be glad to do that.

    And, I think, Your Honor is correct that it is the statute that we are here construing that the problem is to determine just what that definition is.

    Now, the term, “labor dispute,” this — it’s found in 29 U.S.C 113 (c) and at page 40 of our brief, we have quoted the definition from the Labor Management Relations Act of 1947.

    The two definitions are identical except for one small word which I will point out in —

    Felix Frankfurter:

    I’m just curious to know why you did that, why you didn’t quote from the Norris-LaGuardia Act, pure curiosity — academic curiosity.

    John D. Mosser:

    I was comparing this case at that point, Your Honor, to the Benz decision of this Court which was rendered three years ago and in which the Court held the Taft-Hartley Act was not enacted with any eye to foreign labor relations or disputes over employment conditions aboard a foreign flag vessel.

    Felix Frankfurter:

    I can understand your quoting both.

    I can’t quite understand your partiality to one.

    John D. Mosser:

    Barely to say if — that the argument I make in my brief, Your Honor, is that the sections are identical except for one word and I quote the different word.

    The definition in the Norris-LaGuardia Act is, “The term, labor dispute, includes any controversy concerning terms or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment regardless of whether the dispute stand in approximate relation of employer and employee.”

    Now, the only difference between the two acts is that the Labor Management Relations Act, instead of saying terms or conditions of employment, says terms tenure or conditions of employment.

    The one word tenure is the difference.

    Felix Frankfurter:

    Perhaps the proximate relation clause means that it doesn’t have to be a quarrel between a particular employer and his particular employee.

    John D. Mosser:

    That’s correct.

    But I think the definition does point that it must be a dispute over the terms or conditions of employment or over the right to represent persons in seeking to arrange terms or conditions of employment.

    And if as the respondent say in their reply brief, they are concerned and don’t want to change wages, hours or working conditions aboard this vessel and don’t want to represent this crew, it’s hard for me to see where there would be any labor dispute even if this were an American flag vessel.

    Now, I hasten to — to point out that I don’t think the records supports the interpretation of this dispute which counsel has put on in it the last minute in this reply brief.

    It’s not the position they took anywhere up until that time.

    The position which they took in their opening brief in this Court is it stated at the top of page 13 of that brief and it states the evidence shows that the controversy between the parties concerns terms and conditions of employment.

    The fact is that when this vessel arrived in court Mr. Willoughby, the petitioners Seattle agent, went aboard the vessel.

    And at page 61 of the record, he testified that he told the captain, “Well, I told him by virtue of the policy of my union that I was interested in the wages, hours and conditions existing aboard the ship.”

    At page 29 of the record, in his affidavit, he’s outlined his efforts to find somebody with whom he could negotiate and states that affiant has not been able to find or talk with any person or persons in this area or been referred to any person who could be contacted by long distance who would admit to having authority to negotiate and to adjust the difference with affiant’s organization.

    In the Court of Appeals, in both their briefs, they made quite clear that what they wanted to do was change the wages, hours and working conditions aboard the vessel.

    Felix Frankfurter:

    Well, if that’s so, then what becomes of your oral argument (Voice Overlap)

    John D. Mosser:

    Well, then, I think, we come to the real legal question in this case which is whether the term, labor dispute, was intended by Congress to encompass a dispute over terms and conditions of employment aboard a foreign flag vessel.

    And I think I would like to go into that question now.

    Felix Frankfurter:

    Well then, do you — see if I understand, do you now say that they did want to change that they did bring themselves within the terms of he law — the labor dispute of the Norris-LaGuardia Act, on that page of the problem?

    Suspending for the moment, whether a labor dispute with reference to a foreign vessel was — was covered?

    John D. Mosser:

    I think —

    Felix Frankfurter:

    May I ask you that the subject matter of the controversy, do you agree that this was about (Voice Overlap) —

    John D. Mosser:

    I think, Your Honor, that —

    Felix Frankfurter:

    Pardon me?

    John D. Mosser:

    Yes.

    If their intention was to negotiate concerning wages, hours, and working conditions aboard this vessel, then unless the foreign aspect takes it out from the Norris-LaGuardia Act as we contend, I think that it would be within the scope of that Act.

    Felix Frankfurter:

    You say if.

    What — what is your — what is the position —

    John D. Mosser:

    The position —

    Felix Frankfurter:

    — or what — how are we to read the record in your view?

    John D. Mosser:

    I think that the record should be read on that basis that they were seeking to change wages, hours and working conditions, if — if not, I don’t see how there would be any labor dispute here at all.

    But I think that the records supports them that far.

    That they were seeking to change wages, hours and working conditions to bring them up to the American standard so that that competitive difference would be eliminated between the foreign —

    Felix Frankfurter:

    So that goes — the burden you — you have to assume, that your position is that although this is within the qualifications of what is or what is a labor dispute to argue in this case has not been imply be a foreign ship is withdrawn from the scope of the Act.

    John D. Mosser:

    That’s our position, Your Honor.

    Felix Frankfurter:

    All right.

    Charles E. Whittaker:

    If it’s true, then this isn’t a dispute (Inaudible) such as to create dissatisfaction on their people.

    If you can be subject to their (Inaudible)

    John D. Mosser:

    I — I think exactly that that is the problem which has led this Court in the past to say that the delicate international relations and the possibilities of retaliation in these situations, make this a matter for the Executive and the Congress to negotiate and to specifically spell out, if they want our laws to apply to foreign ships.

    Because if we can insist that a ship and this ship is a tramp vessel, a great claim here that it entered this trade.

    Well, it had signed articles in Cardiff, Wales two years before.

    It had been all over the world.

    It had never been in this trade before .

    It came in this one time to deliver this cargo.

    The testimony was that it wasn’t coming back to the northwest.

    It was going to Europe.

    Now, if a vessel that comes in like that for one call, serves as a focus where we can come aboard and say, “You negotiate for this ship American standards and conditions, then every ship — that every port that it touches, can be subject to the same renegotiation according to the local laws and customs.

    And it is that which has led the nations through comity to recognize the law of the flag.

    John D. Mosser:

    Normally in a contract situation, you’ll to the place of performance or the place where the contracts executed, but this Court has said that those things for seamen are — are pretty much where a matter of happenstance.

    And so the law of the flag governs.

    The articles are governed by the law of the flag, the relations aboard the ship are governed by the law of the flag and only in rare instances such as where the tranquility of a port is disturbed or where Congress specifically spells out as it has in a few instances, that our laws are to apply.

    Do American laws apply to a foreign ship within our harbors? Now, the Romero case which is important here on another point to but —

    Earl Warren:

    Before we get to that, I — I wonder if conceding everything that you say, Mr. Mosser, if — if this country doesn’t have the right to — to say, well you can’t have an injunction in these circumstances.

    Perhaps you could have damages or something else to compensate you for any loss, it — it might be occasion, but the policy of our nation is that — that in this — in these circumstances, you can’t have an injunction anymore than one of our own sentences could get an injunction.

    John D. Mosser:

    I think that the Congress could — could certainly say that, Your Honor.

    The question here is whether in passing the Norris-LaGuardia Act and defining labor dispute in it, they intended that to encompass a labor dispute on a foreign flag vessel.

    Earl Warren:

    Yes.

    Well I — I understand that.

    But it seemed to me that in your argument just a moment ago about the foreign vessel, you were taking the position that if — if we interfered with them here, we would be denying them the comity and the — and the rights under their — their treaty that they were entitled to, namely, to — to protection while they’re in our country.

    Now, it — it may be that our — our Congress wants to limit not on their own citizens, but everybody to a particular kind of action.

    And the only question is whether they have done it here under the — under the Norris-LaGuardia Act.

    But as I understood you, a moment ago, in response to Justice Frankfurter, you — you said that you believe that they — that they were making a claim in this case, that is the union, which — which would’ve prevented the granting of an injunction in the event this was a — American citizen.

    John D. Mosser:

    No, not an American citizen, an American ship.

    Earl Warren:

    An American ship.

    Yes.

    Yes, I’m — I’m sure that you said that.

    John D. Mosser:

    I — I think that’s correct, Your Honor.

    If this was an American flag vessel, there would be a labor dispute here, leaving aside a question which I don’t think we need to go into as to whether they can try to change terms and conditions of employment while articles of shipping are in effect or whether they have to wait until the termination of particular articles.

    But I think that generally, there is no right question, but what a — an American union has a right at some point to go into the question of wages, hours and working conditions aboard on American flag vessel.

    But the question here is whether Congress intended that an American union be free from the prohibition of an injunction in a dispute over terms and conditions of employment aboard a foreign flag vessel.

    And, I think, it may go farther than mere injunctive relief, because the Court has indicated that the Norris-LaGuardia Act serves as a shield not only against injunctive relief, but to a substantive effect.

    In the Hutcheson case, they said, there could be no criminal prosecution.

    And I think that by amendment of the Clayton Act as — as counsel argues and we could concede, if the Norris-LaGuardia Act applies, then their conduct is probably protected from being a violation of any law of the United States in this situation.

    Felix Frankfurter:

    You say — you referred two or three times, certainly twice, to the fact that whenever Congress wanted to exercise its undoubted power to touch, to deal with a foreign flag vessel, it said so, explicitly, have you collected those — that legislation?

    John D. Mosser:

    That legislation was collected by the courts, Your Honor, in the Benz decision.

    It’s largely a series of enactments relating to the advances of pay to seaman and the right to make a draw by a seaman in an American court.

    And the Congress has specifically said that a seaman aboard a foreign flag vessel has the right to make a demand for pay in an American court.

    The whole series of — of acts and the controversies that grew out of them are outlined in —

    Felix Frankfurter:

    How far back do they go, does that — type of legislation?

    John D. Mosser:

    Most of it occurred, Your Honor, in the early part of this century, from about 1910 through the early 1920s, I believe.

    I don’t believe there has been any specific act of Congress applying our laws to foreign ships, since that time.

    The — Congress did in 1938 passed an act which is no longer in effect governing labor relations aboard merchant vessels, specifically.

    That’s referred to in our brief.

    It was —

    Felix Frankfurter:

    Am I wrong in — in thinking and in having a notion that admiralty, wholly apart from legislation, protected seaman in certain ways —

    John D. Mosser:

    Oh, yes.

    Felix Frankfurter:

    — that matter the admiralty law?

    John D. Mosser:

    Oh, yes, Your Honor.

    Felix Frankfurter:

    As to that body of — if I may use a contradiction in terms, common law admiralty law, was there any — was there any litigation as to the applicability of admiralty to foreign ships or I suppose answer my question since those — since those admiralty law — lawmakers, judge-made rules were based on the generality of admiralty law, they probably would be a world-wide application, is that right?

    John D. Mosser:

    Most of them are and, I believe, our courts have shown a tendency to apply the general admiralty law to foreign seaman, except in some cases, they have said that the jurisdiction might not be mandatory.

    It’s a discretionary jurisdiction sometime in our court whether to entertain suits between foreigners over those questions.

    And sometimes, they have refused where they felt that a better remedy or a better forum for the trial was in —

    Felix Frankfurter:

    Even country of the flag.

    John D. Mosser:

    — in the country of the flag, or in the country where the parties, themselves, resided.

    Hugo L. Black:

    May I ask you who own the stock in this company that owned the ship?

    John D. Mosser:

    It’s not revealed in the record, Your Honor.

    The Panama Steamship Company was the owner of the vessel and, of course, the owner was the one who hired the crew.

    It’s a Liberian corporation.

    The only thing the record shows is some knowledge that the captain had of — he — he referred to the owners as Greeks in London, but when pinned down, he didn’t know whether they owned the stock —

    Hugo L. Black:

    What —

    John D. Mosser:

    — or were managing agents.

    Hugo L. Black:

    Then what was this diagram that appears in the end one of the briefs?

    John D. Mosser:

    Well, it’s — it’s something that counsel devised and I don’t think it inaccurately portrays the relations between the parties.

    Hugo L. Black:

    Was there a company that had a company in New York that owns the ships here?

    John D. Mosser:

    No.

    It owned —

    Hugo L. Black:

    Owned a corporation?

    John D. Mosser:

    It owned the stock in the charterer of the vessel.

    John D. Mosser:

    Now, the time charterer of the vessel has nothing to do with labor relations aboard the vessel.

    It wasn’t a bearable charterer.

    It was a time charterer and all they did was hire the ship to carry a cargo of — from one — well, they hired it for a period of time and during that time, used it to carry this cargo.

    But the labor relations were set between the owner and the crew and the time charterer had nothing to do with those, it’s — it’s no different than if I book passage for a 30-day cruise on the Queen Mary, I’m chartering some space on that vessel for a period of time, but I don’t have anything to do with the labor relations aboard the vessel.

    Hugo L. Black:

    Suppose they had picketed that company in New York and had the same information on their picket, would the Norris-LaGuardia Act have barred the issuance of an injunction?

    John D. Mosser:

    I think so, if the intent was as it was here.

    In my opinion, to change terms and conditions of employment aboard a foreign flag vessel, which is only transiently in our ports.

    Hugo L. Black:

    Do you think even if they have picketed the companies that owned the corporation that owned the ship, that — that they could’ve done the — an injunction despite the Norris-LaGuardia Act?

    John D. Mosser:

    I think —

    Hugo L. Black:

    Do I understand you say that.

    John D. Mosser:

    I think so, Your Honor, because, I think, the question is whether they have a right to dispute over terms and conditions of employment on a foreign flag vessel.

    Hugo L. Black:

    Well, I thought, they were frequently disputes between officers and stockholders of companies and the man sometimes by their picketing, because of their interest in them.

    John D. Mosser:

    Well, if the employment is domestic to this country, I think possibly they have —

    Hugo L. Black:

    Suppose — suppose it’s not domestic?

    John D. Mosser:

    I know —

    Hugo L. Black:

    Suppose the United Fruit Company, to get a dispute with the United Fruit Company here, in connection with some of its work in South America, do you mean that the Norris-LaGuardia Act would allow that United Fruit Company to get an injunction?

    John D. Mosser:

    I think it would, Your Honor.

    I think —

    Hugo L. Black:

    That’s the basis of your argument.

    John D. Mosser:

    I — I think so, Your Honor.

    I don’t — this is a — this is shipping and it — its — its unique in this sense that it’s the only case were foreign conditions of employment actually come into the United States territorial waters.

    But I don’t think it’s any different than if the United Auto Workers picketed General Motors and said, “We want you to stop paying German wages in your Opel factories in Germany.”

    Or someone picketed General Electric and said, “We don’t want you to — to build anymore parts in Japan for our television sets using Japanese labor.”

    It’s a question of whether American labor has the right to picket over the use of foreign labor and — and to try to change the conditions of labor all over the world.

    Now, in past cases, the Court has been very clear that when Congress wanted to apply our laws, labor laws, to foreign employment, it required that that be spelled out.

    There was a case of Foley Bros. versus Filardo, which involved the Eight Hour Act.

    And there you had an American employer and American employee, working on the United States base in Iran.

    And the question was whether the Eight Hour Law applied to that employment.

    And the Court said there was universal language.

    Every laborer, every employer, it said, this does not apply, because if Congress wants us to apply laws to situations of labor in foreign countries, where everyone knows labor conditions are far different, they must specifically spell it out.

    John D. Mosser:

    In another transportation field, there have been two cases, as to whether the Federal Mediation Board had jurisdiction to determine a bargaining agent or hold a representational election for the right to represent airline dispatchers working in foreign country.

    And both the Board and the — the Courts of Appeal, upholding them, have said not.

    They have said that Congress must be explicit when it wants us to apply American laws to foreign employment situations.

    Then they closest case we have, of course, is the Benz case, which was a situation virtually identical with his concerning the Labor Management Relations Act.

    You had there an American union picketing a Liberian vessel in an American port.

    And the question was whether the Taft-Hartley Act preempted the District of the — of the — the jurisdiction of the District Court.

    Now, that was a jurisdictional question just as this is a jurisdictional question.

    There, as here, the crew was foreign and had signed articles subject to Liberian law abroad.

    And there is here, the terms and conditions of employment were far below those in American ships competing.

    And there as here, the union said that we are trying — they — they clearly said there as they don’t here, “We want to represent this crew and — and be its bargaining agent.”

    But they also said, “We’re trying to protect our interest in the grain trade between Portland and India.”

    And, I think, that if in that case, the Taft-Hartley Act didn’t apply with virtually — except for that one word tenure the same definition of labor dispute.

    It is hard to see how the Norris-LaGuardia Act would apply in this situation.

    Getting outside the labor field, we have the example of Romero and Lauritzen, where this Court has said that the universal — every seaman of the Jones Act does not necessarily apply to a foreign seaman injured aboard a foreign ship.

    And in Romero, the Court specifically pointed that it would be — it’s — it’s not within any policy of the United States and would be a terrific burden on commerce if the standard of compensation must change in every port to which the vessel goes.

    Now there, you were talking about compensation for an injury which may or may not occur.

    But I think the standard of wages is much more significantly a standard of compensation that can’t change in every port to which the vessel goes.

    If you look at the legislative history of the Norris-LaGuardia Act, the Act itself says nothing about applying to foreign shipping or to foreign commerce at all.

    If you look at the — its legislative history which we have included a few excerpts that we were able to find that shed any light at all and they aren’t talking about this foreign shipping problem, but there is language there, such as the Court relied on in the Benz case that it was enacted to take care of domestic disputes involving American working men, the working men of this country which would indicate that it was not intended to apply in this situation.

    Hugo L. Black:

    One of the reasons that I understood from the passage of the Norris-LaGuardia Act was that many people thought that it was doing an injury to courts to issue an injunction to the — such controversial field.

    As far as that reason was concerned, if it is about that reason, is to be no difference between foreign ship controversy and the domestic one when you —

    John D. Mosser:

    I think that the reason, so far as it applies would be the same, Your Honor.

    I think, though, that the question here is — certainly, Congress has since given back to the courts power to issue injunctions in many cases.

    And I’d like to point out here the — the problem that arises, if Taft-Hartley doesn’t apply, if we aren’t going to go aboard these ships and certify collective bargaining agents, then there is no equality if these treaty means equality between of — the owner of a foreign ship and the owner of an American ship, because without certification, you can never put an end to your labor disputes.

    Whereas, in — on the American ship, once you had a bargaining agent, it would be an unfair labor practice and you could get an injunction through the Board, if some other union came along and picketed you.

    Under the new Act, if somebody wants to represent the seaman aboard a ship, they — or aboard it — for any employer, they can picket, but within 30 days, they must apply to become for an — certification election.

    Here, they could never apply under the interpretation that’s been given to the Taft-Hartley Act.

    And so, you would have the situation that one union could picket for 30 days then it would to stop, perhaps, if there’s any way to get to the Board to stop it.

    But another union could come along.You just never have an end to the organizational problem which are our laws supplementing Norris-LaGuardia have taken care of for American employers.

    Felix Frankfurter:

    Let me ask you this, Mr. Mosser.

    Felix Frankfurter:

    I think Mr. Jennings, though may misinterpret him, but I got the impression that he was not show whether relief could be held even by way of injunction in a state court.

    It all events whether I’m right or not as to what he said.

    What do you say, could the relief he had?

    The reason I ask you this, there was real abuses, which led to the enactment of the Norris-LaGuardia Act derived from the abuses of issuing injunctions in the federal courts by a reason of diversity of citizenship.

    There were hardly — there were few cases in which the Court had jurisdiction as such in the federal courts, in the Debs case, of course, where they strike an example.

    But on the whole, in the main overwhelming mischief that was complained of and that was felt in rightly — as I believe, was that the adversity cases got into the federal court.

    The jurisdiction and that led to this injunction.

    And that embroil the federal court in — in none — so-called federal litigation in issuing injunction.

    Now, do you think, in this case, have you any viewers to whether this litigation could have been begun?

    The test could’ve been successfully pursued in the state court?

    John D. Mosser:

    I think probably that the same result would obtain, in this case, in a state court.

    Felix Frankfurter:

    Meaning —

    John D. Mosser:

    You’d have the same problem.

    There was a —

    Felix Frankfurter:

    What’s the basis of jurisdiction apart from — is it the admiralty tort?

    John D. Mosser:

    I — I think, this is a maritime tort —

    Felix Frankfurter:

    — so that you can —

    John D. Mosser:

    — in this case.

    And I think the maritime —

    Felix Frankfurter:

    Putting the Romero case aside for a moment, so you’re in the federal court because this is an admiralty jurisdiction statute?

    Let’s suspend the (Voice Overlap) —

    John D. Mosser:

    All right.

    Felix Frankfurter:

    — question of —

    John D. Mosser:

    No.

    Felix Frankfurter:

    — trade of course.

    And would — would that afford basis in the state courts?

    John D. Mosser:

    I — I think it could be a savings clause action —

    Felix Frankfurter:

    (Voice Overlap) —

    John D. Mosser:

    — in the state court.

    The State would have a little Norris-LaGuardia Act, where you’d have the same problem of whether this was a labor dispute within the meaning of that particular Act, instead of the federal Act, you might have different legislate history, I don’t know.

    Felix Frankfurter:

    I know of many States says that if you examine how many States now have what you call a little Norris-LaGuardia Act, could many —

    John D. Mosser:

    I can’t.

    It — it’s well up in — to close to 30, I think —

    Felix Frankfurter:

    (Voice Overlap) —

    John D. Mosser:

    — Your Honor.

    William J. Brennan, Jr.:

    Did you suggest, Mr. Mosser, this might be savings clause action?

    John D. Mosser:

    Well, I — I think, Your Honor, that if — as we contend, this is a maritime tort.

    It is one which — of which the federal courts have maritime jurisdiction and any — the — the Court in Romero said that any case, regardless of the remedy, saw it as a case of admiralty in maritime jurisdiction.

    If that’s true, if you brought it in the state court, it would be a savings clause action, I believe.

    Felix Frankfurter:

    If the state court has a common law remedy.

    John D. Mosser:

    If the state court has a common law remedy.

    William J. Brennan, Jr.:

    Is the injunction such (Inaudible)

    John D. Mosser:

    There are cases, Your Honor, Supreme Court cases reviewing state court decisions which hold that a suit for equitable relief is a savings clause action that the common law remedy was not —

    Felix Frankfurter:

    Common law with English law not — not —

    John D. Mosser:

    The English law —

    Felix Frankfurter:

    (Voice Overlap) —

    John D. Mosser:

    That’s right, Your Honor.

    Charles E. Whittaker:

    (Inaudible)

    John D. Mosser:

    What — the question, if I understood it, was whether an injunction which is an equitable remedy was within the meaning of the savings clause — saving the suitors all remedies, which the common law is confident to provide.

    And the Court has interpreted common law there, to be the English law including equitable remedies as well as a common law remedies.

    Charles E. Whittaker:

    Do you (Inaudible)

    John D. Mosser:

    Yes, Your Honor.

    I think it’s an important one.

    And I think, probably, the — the rest of my time would best be devoted to it.

    Earl Warren:

    Yes.

    John D. Mosser:

    The basic jurisdiction —

    Earl Warren:

    Yes.

    John D. Mosser:

    — of the District Court was challenged for the first time in the Court of Appeals.

    In the District Court, the only argument had been the one we’ve had here so far as to whether Norris-LaGuardia labor dispute was present.

    The Court of Appeals found jurisdiction under Section 1331.

    John D. Mosser:

    And as counsel points out, there is a seeming conflict between that decision and the decision of this Court last year in Romero.

    Now, I think the sounder basis for jurisdiction here is in admiralty, which — and the question is whether admiralty has the power to issue the equitable relief of an injunction.

    At the outset, I’ll say that there is dictum in decisions of this Court that admiralty does not have equitable remedial powers and does not issue injunctions except in cases of limitation of liability.

    However, that decision was in the case of Schoenamsgruber versus Hamburg American Line.

    These cases are discussed at 22 and — to 24 of our brief.

    That was a — a case in which the question was whether a — a District Court could stay proceedings pending arbitration.

    And the Court held that it could and in the process of it, noted that a stay of proceedings was not an injunction, but it went on to have this gratuitous language that admiralty doesn’t issue injunctions.

    There are earlier cases.

    The Eclipse is perhaps the fountain of this doctrine from the Supreme Court.

    That was a case where the request was that a court of admiralty, reform a contract for the sale of a vessel and enforce some trust provisions.

    Now, admiralty doesn’t deal with sales of vessels to begin with.

    The sale of a vessel is not a — a suit over the sale of a vessel isn’t the suit in admiralty.

    So, of course, this claim for equitable relief, in connection with a sale of a vessel, wouldn’t be within admiralty.

    The Court there noted the claims were — there was nothing maritime about the claims.

    That was the language of the Court.

    Yet, it went on to give again this dictum that admiralty — although it exercises its jurisdiction upon equitable principles, has not the characteristic powers of the court of equity.

    Now, I think recent decisions of this Court has made clear that the real doctrine is that when admiralty has jurisdiction, when the basic subject matter of the suit is an admiralty claim, admiralty has equitable powers, whenever they’re necessary to justice.

    Romero, itself, said that all claims regardless of the remedy sought involving a maritime cause of action where cases of admiralty and maritime jurisdiction.

    It said that in giving its reason for lack of jurisdiction under 1331, that the admiralty courts had been completely adequate to the vindication or protection of rights grounded in federal maritime law.

    Now, if they didn’t have equitable powers when they were necessary, they couldn’t be completely adequate to the protection of those rights.

    In Swift & Company versus Compania Colombiana, in 1950, this Court pointed out a lot of this dicta in passed decision and described them as a good deal of loose talk and said that in that case, admiralty could set aside the fraudulent transfer of a vessel.

    The libel there was in personam with foreign attachment and the attachment was necessary to the jurisdiction of the Court.

    The basic libel was clearly within admiralty’s jurisdiction.

    And the Court there — what happened?

    The respondent in the suit transferred the vessel to somebody else, before it was attached.

    And unless that fraud — that transfer which the Court held was fraudulent, could be set aside.

    The attachment would have to be dissolved and there would be no jurisdiction in the Court.

    Am I right in thinking that the lower court did not deal with this problem?

    John D. Mosser:

    The lower court did not deal with it.

    And you didn’t assert, did you, in the lower court?

    John D. Mosser:

    In — in the District Court, no question of jurisdiction was raised, Your Honor.

    The pleading has denominated the complaint, not a libel, so we clearly — as far as labor was concerned, weren’t on the admiralty side.

    In the Court of Appeals, the situation was this.

    The arguments were both had before this Court’s decision in Romero.

    There we briefly pointed out to the Court that admiralty was a possible basis of jurisdiction, but our main argument was centered around the — what was decided in — in Romero.

    We were arguing that any case of federal merit — involving federal maritime law was one arising under the Constitution and laws of the United States, within the meaning of Section 1333.

    The Court of Appeals’ decision followed the dicta of this Court and said that admiralty cannot issue an injunction, but said this is a clear distinction from the situation in Romero, because Romero had a completely adequate remedy in admiralty.

    Here, this is a case in equity.

    It is — there is no completely adequate remedy in admiralty and therefore, we think that the reasoning of Romero would not apply to this case.

    And since it is a maritime claim arising under the Constitution of the United States, it is one where federal question jurisdiction exists.

    There is no implied exception as was found in Romero, because of the — an adequate alternative remedy.

    Felix Frankfurter:

    But why — why did you answer unequivocally, Justice Harlan’s question?

    The Court of — knows what they can deal with this question.

    It deal with the (Voice Overlap) —

    John D. Mosser:

    It did deal with it.

    Yes —

    Felix Frankfurter:

    (Voice Overlap) certainly it dealt with it.

    John D. Mosser:

    I think you’re — you’re right.

    The lower — the Court of Appeals followed the dicta of this Court and said that admiralty can’t issue an injunction based on the Eclipse and the Hamburg American Line case.

    But it was not argued at any great length, if that’s your point in the lower court.

    Felix Frankfurter:

    But the whole question of whether admiralty commits an injunction was canvassed alone, wasn’t it?

    John D. Mosser:

    I think it was, Your Honor.

    And they decided that it could not —

    Felix Frankfurter:

    Could not —

    John D. Mosser:

    Therefore, there was no adequate remedy in admiralty contrary, I think, to the decision of Romero that admiralty jurisdiction was completely adequate and that all cases, regardless of the remedy sought, were cases of admiralty and maritime jurisdiction.

    But if —

    Felix Frankfurter:

    Can Judge Pope — can Judge Pope say since admiralty can’t issue an injunction, this isn’t admiralty ergo it is law in equity.

    John D. Mosser:

    Judge Pope did not say that.

    Felix Frankfurter:

    What did he say?

    John D. Mosser:

    Judge Pope — I think the other two judges said that, Your Honor.

    John D. Mosser:

    Judge Pope just very briefly said that the basis of Romero was that there was a completely adequate jurisdiction for Romero in the smoothly functioning admiralty jurisdiction.

    Felix Frankfurter:

    He really sought — was injunction against the maritime tort, which is Judge Pope.

    Relief of that character is wholly unknown to an admiralty court.

    This was not a case in respect to which a federal admiralty court — courts have been completely adequate to entrust to protecting maritime rights, put it in federal law.

    Therefore —

    John D. Mosser:

    That’s right.

    Felix Frankfurter:

    He may —

    John D. Mosser:

    He doesn’t say it’s an equity, but he says it isn’t an admiralty.

    Felix Frankfurter:

    (Voice Overlap) well, I know, but therefore he says Romero doesn’t apply.

    John D. Mosser:

    That’s right.

    Felix Frankfurter:

    And it doesn’t apply because he says that admiralty can’t issue an injunction

    John D. Mosser:

    That’s right.

    Hugo L. Black:

    So I should — myself was given the opposite (Inaudible)

    John D. Mosser:

    I think for — I think your answer would have been the better one.

    It was considered below and — and both the majority and minority decisions held that admiralty could not issue an injunction.

    Charles E. Whittaker:

    Mr. Mosser, why do you say this is involved in the maritime claim?

    John D. Mosser:

    Your Honor, the suit here was to stop picketing which was occurring on navigable waters with one ship circling around another.

    It was to stop the intentional interference with maritime contracts of affreightment and for the discharge of the vessel.

    The Court found that it was the intention of petitioners, through their picketing and through their circling and through the threats which they made to the consignee of the cargo to prevent this ship from securing a berth and discharging its cargo.

    Now, those were maritime rights, the right to proceed with the vessel, the right between — the contract between the vessel and the — the dock, which were interfered with.

    Charles E. Whittaker:

    Were they such or were they rights under the Commerce Clause of the Constitution?

    John D. Mosser:

    They maybe both Your Honor, but I think they’re clearly maritime rights.

    They may also, as we argue and this is an alternative ground of jurisdiction that these rights arise under the treaty between the Republic of Liberia and the United States

    Charles E. Whittaker:

    But that treaty applies only, does it not, as to claims grounded in resounding in tort?

    John D. Mosser:

    Under — well, our action is in tort.

    I think that’s clear.

    Charles E. Whittaker:

    An action for an injunction is one in tort?

    John D. Mosser:

    They — the basic cause of action is for a tort.

    Certainly, if it were not a tort, I don’t think you could enjoin it.

    Charles E. Whittaker:

    Then you use the word tort as a result of an infringement of a constitutional right to do interstate to inform commerce?

    John D. Mosser:

    I think so, Your Honor.

    Charles E. Whittaker:

    You think that’s a tort?

    John D. Mosser:

    I think so.

    And if you look at Section 1350 of the Judicial Code, it specifically gives a — a right of action to any alien and all the plaintiffs’ respondents here were aliens.

    The District Court shall have original jurisdiction of any civil action by an alien for tort only, committed in violation of the law of nations or a Treaty of the United States, so the Judicial Code clearly recognizes that you can have a tort violation of a treaty.

    Charles E. Whittaker:

    I don’t question that.

    It seemed to me that if this is an action for an injunction in equity, it’s on the law side of the Court under Section 1333.

    And that you have a jurisdiction on the basis that the actions, one that does arise on the constitutional laws of the United States and you never run into the Romero problem.

    John D. Mosser:

    Well, if your — that if, as I said, this is an alternative ground of jurisdiction and one which we urged both below and hear that under 1331 or 1315, we’ve added in this Court, if there is a right here under a treaty or the law of nations which was violated, then there is a federal question entirely separate from the maritime rights that are involved.

    It’s only if the basis of jurisdiction is maritime that you get into the question of whether the jurisdiction is in admiralty under 1333 or under 1331, under the exception which the court below found to the Romero decision.

    Felix Frankfurter:

    And what is the starting point of the right under a treaty, the reciprocal treaty between Liberia and the United States?

    John D. Mosser:

    That’s right, Your Honor.

    That treaty provide —

    Felix Frankfurter:

    You have to do a lot of — you have to do a lot of jumping from base to base don’t you?

    John D. Mosser:

    Well, I — I will say this.

    It presents — there is no clear case which has held the exact thing that we are supporting.

    I think that by logic, you can move through the steps that we have in our brief here and arrive at that jurisdiction.

    The treaty was proclaimed in such a way as to be binding upon not only the Government of the United States, but the citizens of the United States and it granted rights to the individuals.

    Felix Frankfurter:

    I’m not worried about that.

    I’m worried about the content of the treaty from which — which you claim is violated by this action.

    As to that, I don’t even — I don’t hold you to finding a case as to that, you have to do a good deal of — of several spelling out derivation don’t you?

    John D. Mosser:

    Well —

    Felix Frankfurter:

    I’m not saying you can’t do it, but you —

    John D. Mosser:

    I — I think that’s —

    Felix Frankfurter:

    It is not the surface, is it?

    John D. Mosser:

    It — it doesn’t say in black and white.

    There’s a cause of action, if somebody pickets here. [Laughs]

    Felix Frankfurter:

    Does it say any gray?

    John D. Mosser:

    Well, I think it — I think in gray, yes, Your Honor.

    Charles E. Whittaker:

    (Voice Overlap) —

    Felix Frankfurter:

    Light gray or in heavy gray? [Laughter]

    John D. Mosser:

    Well, I’ll make it heavy [Laughter].

    You might find it light.

    Felix Frankfurter:

    What — what words would you — what words are gray to you?

    John D. Mosser:

    Well, I think there is —

    Felix Frankfurter:

    What makes you (Inaudible) the treaty is gray?

    John D. Mosser:

    I think there is language in the treaty which would indicate an equality of rights between Liberians and citizens of the United States and you have to interpret what inequality they were talking about, whether they meant that the Norris-LaGuardia Act should apply, for example, in that sort of thing and you have to look at whether when —

    Felix Frankfurter:

    Well, I can — I can see if there’s some provision they shall be found — general provision they shall be free from the judicial process interfering with the free passage of the vessels.

    You haven’t got anything like that, simply shall (Voice Overlap) —

    John D. Mosser:

    No.

    Felix Frankfurter:

    — be reciprocity.

    And how you — you’ll have to do a good deal of — of footwork.

    Brain — headwork rather, not footwork, headwork to go from a general provision of reciprocity to saying the Norris-LaGuardia Act can be construed this way.

    John D. Mosser:

    I don’t think this — one thing I would point out that this isn’t necessarily a reciprocal treaty or one which creates equal rights.

    It states that vessels of Liberia in our waters will be considered vessels of Liberia, not Americans ships.

    It specifically, by another article, prohibits Liberia.

    Felix Frankfurter:

    You will need a treaty for that, do you?

    John D. Mosser:

    It prohibits Liberia from entering our costal trade.

    In other words, they’re not made equal with American vessels in entering our coastal trade.

    There are some equal — when they talk about entering our courts, they say they shall enter on — on the same basis as American citizens, but the right of freedom of commerce and navigation, as guaranteed by this treaty, isn’t stated in terms of equality.

    It says flatly, there shall be a freedom of commerce and navigation between the two countries.

    And I —

    William J. Brennan, Jr.:

    Excuse me, Mr. Mosser.

    Is there another article besides Article 15 upon which you rely in this — making this argument?

    John D. Mosser:

    Well —

    William J. Brennan, Jr.:

    Article 15 —

    John D. Mosser:

    Article — Article 15 merely makes clear that the vessel is one of Liberia — to be treated as a Liberian vessel, regardless of ownership for a consignee or anything of that kind.

    William J. Brennan, Jr.:

    Why do we have them (Voice Overlap) —

    John D. Mosser:

    Article 7 is quoted at page two of our brief and that’s the one that it says that, “Between the territories of the high contracting parties, there shall be freedom of commerce and navigation in the nationals.”

    And here, the two corporate plaintiffs are Liberian nationals, shall have the right to come and go with their vessels.

    William J. Brennan, Jr.:

    Yes.

    Hugo L. Black:

    And you said several times, this is the maritime tort.

    Do we have to face on that to determine the principal jurisdiction on the Norris-LaGuardia Act?

    John D. Mosser:

    Well, Your Honor, there was no claim made until a petition for rehearing below that there wasn’t a — a tort here, if Norris-LaGuardia didn’t protect the conduct.

    Hugo L. Black:

    Where are the — the question I asked was whether we have to think about that at all in connection with determining whether this — under the Norris-LaGuardia Act.

    John D. Mosser:

    I don’t think so, Your Honor.

    I — I think that they haven’t really challenged that there is.

    We’ve cited some cases on our brief that show that this is a — a — that interference with maritime contractual relation is a maritime tort.

    Felix Frankfurter:

    I’m not sure that if it — it —

    John D. Mosser:

    No.

    Felix Frankfurter:

    — it isn’t impertinent to intervene.

    I’m not sure that you get the whole force of Justice Black’s question.

    If we determine — if the Court determines this is a limitation upon the courts not to issue an injunction in labor controversy on the Norris-LaGuardia Act applies to this, we don’t have to bother what the nature of the suit is, don’t we?

    John D. Mosser:

    Your Honor’s question is whether —

    Felix Frankfurter:

    Do you have the question?

    John D. Mosser:

    Yes.

    In other words, if — if you apply that the — if you determine that the Norris-LaGuardia Act applies, well, then clearly, the —

    Felix Frankfurter:

    If they remanded the litigation as to —

    John D. Mosser:

    Well, the injunctive relief has clearly ended and I —

    Felix Frankfurter:

    But all we have here —

    John D. Mosser:

    The suit was for damages as well.

    But at the present time, the only thing on appeal is the injunction, so your —

    Felix Frankfurter:

    That —

    John D. Mosser:

    — the Court would not necessarily reach the other question.

    Felix Frankfurter:

    But isn’t that true?

    Isn’t that all there is before us now?

    John D. Mosser:

    The injunction, Your Honor.

    Felix Frankfurter:

    The injunction.

    John D. Mosser:

    Right.

    Felix Frankfurter:

    If your answer to Justice Black is, yes, then isn’t it?

    Felix Frankfurter:

    If Norris LaGuardia limits the Court in — as to this litigation, it’s an end of it, so far as we’re concerned.

    John D. Mosser:

    You would reverse the judgement below and remand, I don’t think you would direct the dismissal of the complaint.

    Charles E. Whittaker:

    Do you not, is that quite correct?

    Would you not have to first be in the court that had power to hear before the Norris-LaGuardia question prohibiting injunctions in special cases would arise?

    So don’t you have to show a fundamental basis of jurisdiction in the court before you get to the Norris-LaGuardia question?

    John D. Mosser:

    Well, Your Honor, I think we have two burdens.

    We have to show fundamental jurisdiction and we have to show that there is no labor dispute.

    Charles E. Whittaker:

    Yes.

    John D. Mosser:

    If — if you resolve either of those questions against this, I suppose it — it terminates the case against us —

    Charles E. Whittaker:

    Yes.

    John D. Mosser:

    — to that extent.

    Charles E. Whittaker:

    But my point is that before we can get to the Norris-LaGuardia question, do we not have to find that there was — there would be jurisdiction otherwise?

    John D. Mosser:

    I think that the normal method by which the Court proceeds is to first consider basic jurisdiction, but I don’t suppose there’s anything that requires that and if the Court wanted to say, we don’t have to consider basic jurisdiction, there wouldn’t have been a right to issue an injunction here anyway.

    Felix Frankfurter:

    Well, then —

    John D. Mosser:

    It could reverse on that ground.

    Felix Frankfurter:

    (Voice Overlap) wouldn’t the normal thing, in this case, be to deal with that problem of jurisdiction which is conclusive no matter what?

    If the Norris-LaGuardia Act is conclusive no matter what, why bother whether it refers to find that we have jurisdiction on some other ground?

    John D. Mosser:

    I think either question of jurisdiction could be conclusive no matter what if you decided it against us.

    Felix Frankfurter:

    Yes but — [Laughter] it — it maybe conclusive.

    Yes, but if — if Norris-LaGuardia does apply, then it must be conclusive.

    John D. Mosser:

    That’s correct.

    Charles E. Whittaker:

    Well, the Court Of Appeals here has granted an injunction.

    John D. Mosser:

    The Court of Appeals has affirmed to grant up an injunction by the District Court.

    Charles E. Whittaker:

    Now, then, for you to keep that judgement and getting affirmance, if the questions so feel, you’ll have to show, would you not, both basic jurisdiction and non-applicability of Norris-LaGuardia?

    John D. Mosser:

    Certainly, Your Honor.

    Charles E. Whittaker:

    So then do you not have to sustain here both burdens —

    John D. Mosser:

    Certainly.

    Charles E. Whittaker:

    — if you — if you’re to win?

    John D. Mosser:

    That’s right

    Charles E. Whittaker:

    Now then, what’s the basis of your jurisdiction, your fundamental jurisdiction?

    John D. Mosser:

    I think there are — there are several alternative bases, Mr. Justice Whittaker.

    There is a basis of jurisdiction under 1331 and 1350 because of treaty rights.

    There is a jurisdiction under 1333 because of maritime rights and we claim that admiralty has the power to issue an injunction.

    If admiralty has not the power to issue an injunction, there is a basis under 1331 because of the substantive maritime law applied and no adequate alternative remedy in admiralty.

    Charles E. Whittaker:

    And everyone of your hypotheses includes the assumption that this is a “maritime claim” as contemplated within the meaning of Footnote 23 of this Court’s opinion in the Romero case.

    Is that right?

    John D. Mosser:

    I don’t think the rights under 1331 and 1350 which are based on treaty rights necessarily involved the maritime nature of the case, so I think the — that certainly the rights under 1333 or the right under 1331, because of maritime tort depends upon that exception.

    Charles E. Whittaker:

    The Court was at pains in this Footnote 23 to point out, that all suits involving maritime claims regardless of the remedies sought, our case is in admiralty and maritime jurisdiction, but they first have to be maritime claims.

    John D. Mosser:

    That’s right.

    Charles E. Whittaker:

    Can you say this is —

    John D. Mosser:

    Certainly, Your Honor.

    Hugo L. Black:

    But you can’t get to it, can you, unless if the Norris-LaGuardia Act bargained.

    You never have to — we have that reset (Voice Overlap) —

    John D. Mosser:

    That’s right.

    You can start with either jurisdictional question.

    Charles E. Whittaker:

    (Voice Overlap) —

    Felix Frankfurter:

    And you don’t have through (Voice Overlap) —

    John D. Mosser:

    I hope you will reach both of them and — and resolve from both in favor of the respondents —

    Felix Frankfurter:

    Yes.

    John D. Mosser:

    — and affirm the judgement below.

    Thank you

    Earl Warren:

    Mr. Jennings.

    John Paul Jennings:

    Mr. Chief Justice, if Your Honors please.

    I would like to clarify one matter which is in nature of its dispute that we have here.

    We have issued all intent to interfere anyway with the internal economy of this ship.

    We realize because of this Court’s decision in the Benz case and we could not represent or seek to represent these foreign seamen or to bargain for them.

    The position of the union is best expressed in the picket sign which was used on board the Willoughby, as it circled the Nikolos.

    The AFL-CIO seamen protest loss of their employment, because of the use of foreign flagships employing seamen at substandard wages.

    That was the nature of the protest.

    The dispute could have been settled in a variety of ways.

    John Paul Jennings:

    The record indicates that Mr. Schultz, who was the assistant operating manager of National Boat Carriers also he’s the assistant operating manager of Transea and of Seatankers which is a respondent in this case, so that these American corporations are closely related in Seatankers.

    Seatankers was the agency which selected the Nikolos to use in this trade.

    And necessarily, we hope that the economic pressure which we used could influence Seatankers, perhaps, to change its mind.

    And certainly if the only reason for employment of a foreign ship is that the wages, hours and conditions on that ship, are one-fifth of those on American ship, but that reason disappears and American ship would be used, so that the conditions on the Nikolos were important with the union.

    They existed as conditions.

    The conditions work that the wages were one-fifth of those on these American ship.

    But this was a fact which existed when Seatankers procured the Nikolos to enter the salt trade.

    So that that is the nature of the dispute and we think that the Norris-LaGuardia Act should apply to it.

    There are other problems Mr. Mosser suggested that if we picketed a railroad company that that might be within the protection of the Norris-LaGuardia Act, but obviously it would not, because the industry would be different.

    The trade, craft and occupation would be different.

    We would not be in the same industry.

    It would be a different industry and Norris-LaGuardia would not apply.

    We think that a case more closely analogous would be a case in which, for example, in American Longshore Union would picket in a — in American port to protest the use of foreign non union longshoremen on the — American joined the foreign ship unloading the ship.

    Or if, for example, an American shipowner during the course of a maritime strike, should use a foreign registered vessel, which he might even know in a trade which had been occupied by the struck ships so as to break the strike.

    Or, if an American shipowner and there are some operating foreign ships under American contract, should have the termination of the contract say, I won’t bargain any further and the union would be told of — if you put up a picket line and try to strike, the Norris-LaGuardia Act will not prevent an injunction at the behest of the American shipowner.

    We think those are cases more closely analogous to the present one.

    Now, there was one question asked by Mr. Justice Whittaker the other day with respect to the possibility that on this foreign ship, it might be considered a little piece of Liberia in the port of Tacoma.

    That problem was dealt with in the case of Scharrenberg against the Dollar Steamship Company, in which Mr. Justice Clark wrote the opinion of the Court.

    That’s at 245 U.S. 122 at page 127, decided in 1917.

    Mr. Justice Clark said this, “It is, of course, true that for the purposes of jurisdiction a ship, even on the high seas as often said to be a part of the territory of the nation whose flag it flies.”

    But in the physical sense, this expression is obviously figurative.

    Quoting, International Law Digest, Moore, vol. I Section 174, “And to expand the doctrine to the extent of treating seamen employed on such a ship as working in the country of its registry is quite impossible.”

    And the case was quoted with approval by this Court in the Cunard Steamship Company case.

    Felix Frankfurter:

    With reference, what was involved in that case, Mr. Jennings?

    John Paul Jennings:

    That was a case, Your Honor, in which it was maintained that the employment of a foreign seaman on an American vessel in a foreign port constituted use of foreign labor importation of foreign labor into this country in violation of the statute forbidding it.

    The Chinese seaman had been employed on —

    Felix Frankfurter:

    But he was an American citizen.

    John Paul Jennings:

    Pardon Your Honor?

    Felix Frankfurter:

    Was the seaman an American citizen?

    John Paul Jennings:

    He was a Chinese citizen.

    Felix Frankfurter:

    Chinese citizen.

    John Paul Jennings:

    He was employed under an American ship in a foreign port.

    Felix Frankfurter:

    The question was whether the law applied in American —

    John Paul Jennings:

    Whether that amounted to employment in American territory because the ship was to be treated as American as an extension of American sovereignty.

    Felix Frankfurter:

    And they held not.

    John Paul Jennings:

    And this Court said not.

    Charles E. Whittaker:

    Are many cases — doesn’t the Harrisburg hold the crime committed in the port of New York confined vessel is one committed on foreign island or foreign lands, foreign territory?

    John Paul Jennings:

    I think not, Your Honor.

    The — the courts have uniformly recognized that the sovereign of the territory in which the ship is even though it be a foreign ship, may exercise jurisdiction, but as a matter of comity, they normally do not, if it involves inner — internal relations, relations between the — the members of the crew and the foreign government.

    So the result is if it’s a minor crime, normally, we do not exercise jurisdiction.

    If it’s a major crime, we do.

    And for example, the Prohibition Act was applied to foreign ships when they entered American Courts.

    That was the Cunard case.

    Felix Frankfurter:

    Mr. Jennings, don’t you think we have enough problems on this case without getting into that?

    John Paul Jennings:

    I think so, Your Honor.

    Felix Frankfurter:

    Tangled territory of the criminal liability with regard to ships?

    John Paul Jennings:

    I wanted to answer Mr. Justice Frankfurter’s question.

    Felix Frankfurter:

    Yes, I appreciate all the information, but I just wonder when you thought we have to decide that too.

    John Paul Jennings:

    I don’t think so, Your Honor.

    In conclusion and we think that the Benz case in this Court, which I think is a case relied on principally by Mr. Mosser, is not controlling in this litigation that the Norris-LaGuardia Act does apply and that the injunction was improvidently granted.

    We urge also that in any event, the jurisdiction did not exist below and I wanted to point out that the Court of Appeals believed that the respondents here were not relying upon Section 13 — 1333 because it is stated in the majority opinion at page 143, “Appellee,” that is a respondent here, “has also refrained from invoking jurisdiction on the admiralty side under 28 U.S.C. 1333.”

    This position may have been dictated by the inability — unavailability of a jury trial on the damages in the admiralty and because of appellee’s belief that admiralty cannot afford injunctive relief so that —

    Felix Frankfurter:

    Well, if — may I ask you (Voice Overlap) —

    John Paul Jennings:

    — the Court felt that they were not relying on Section 1333.

    Felix Frankfurter:

    It is your position that this isn’t within admiralty jurisdiction of the Court, admiralty is incapacitated from granting the injunction?

    John Paul Jennings:

    No, Your Honor.

    Our position is that, if this be a maritime tort at all and we don’t think it has been —

    Felix Frankfurter:

    Yes.

    John Paul Jennings:

    — established that it is.

    Felix Frankfurter:

    Yes.

    Felix Frankfurter:

    Go on.

    John Paul Jennings:

    If it be a maritime tort, it is within the exclusive jurisdiction of admiralty and that in that event, the choice is either to sue an admiralty in which event, there is no injunction or to sue one at savings clause in the state court where you may procure an injunction.

    Felix Frankfurter:

    Well, didn’t — and my question was whether — because admiralty — it isn’t within admiralty.

    Of course, one starts that there must be a substantive offense.

    The injunction is a remedy, but you say assuming it is an admiralty clause, start with that —

    John Paul Jennings:

    Yes, Your Honor.

    Felix Frankfurter:

    — then why is it not admiralty because admiralty can’t issue an injunction, was it?

    John Paul Jennings:

    It is in admiralty, Your Honor, but the remedy of injunction is unavailable.

    Felix Frankfurter:

    Well, that — yes, it is an admiralty —

    John Paul Jennings:

    Yes.

    Felix Frankfurter:

    — and since admiralty can’t issue an injunction, admiralty has no power in the premises.

    John Paul Jennings:

    Admiralty would have no power.

    Felix Frankfurter:

    And since it is admiralty, although it can’t accord relief, you can’t go on the law of equity side.

    John Paul Jennings:

    That’s correct, Your Honor.

    Felix Frankfurter:

    All right.

    Earl Warren:

    Mr. Jennings, I — I notice from your — your conclusion in your brief that you — you asked in the event, we decide in your favor that the action be dismissed.

    Does that mean that we — we should reach both jurisdictional questions here?

    John Paul Jennings:

    I think not, Your Honor.

    Earl Warren:

    After we do that?

    John Paul Jennings:

    That was because, as we explained in our brief, we felt if the Norris-LaGuardia Act applies in the conduct of the — the union in picketing, it was protected by the provisions of the Clayton Act and therefore, it was perfectly lawful.

    That was the reason.

    Earl Warren:

    I see.

    Felix Frankfurter:

    You mean to say that everything as to which no injunction could be issued is protected?

    John Paul Jennings:

    No, Your Honor, only the conduct of the union here which was only peaceful patrolling and no more than that.

    Felix Frankfurter:

    Yes.

    I understand that, but I don’t see what the relevance of the limitation of the Norris-LaGuardia Act has to do with it.

    John Paul Jennings:

    That —

    Felix Frankfurter:

    I thought your answer to Chief Justice Warren that if the Norris-LaGuardia Act applies, then it’s protected.

    Is that — is that what you say?

    John Paul Jennings:

    I — I would say that it is protected by the language of Section 104 (e).

    Felix Frankfurter:

    Well, not because you can’t get an injunction in the federal court.

    John Paul Jennings:

    Not because you can’t get an injunction.

    Felix Frankfurter:

    All right.

    I (Inaudible)

    John Paul Jennings:

    Yes, Your Honor.