Earl B. Lewis v. Texaco Inc. , 41 A.L.R. Fed. 800 ( 1975 )

MOORE, Circuit Judge

(concurring and dissenting):

I would reverse on the ground that the seamen’s releases bar recovery under § 594. I do not believe that Texaco should have been required to prove state of mind, since the releases were signed in the presence of a Shipping Commissioner and the seamen were represented by a union official who supervised the sign-off procedures and who was also in contact with union headquarters.

However, even if state of mind were properly required to be proven, Texaco met its burden. First, I do not believe that the wording of the release can be interpreted as excluding § 594. The release spoke of “all claims for wages” and did not specifically invoke § 594; however, Boland’s testimony clearly demonstrated both that the seamen were well aware of their rights under § 594 and that they regarded § 594 as a claim for wages within their understanding of the word. Given the men’s understanding and interpretation of the statute, I think that the term “all claims for wages” (i. e., all claims whether earned through actual man-hours of work or otherwise) encompassed the 30 days’ penalty pay provided for in § 594.

Second, these seamen voluntarily and knowingly entrusted the supervision of the sign-off to the union representative, or patrolman, whose very function it was to oversee such procedures. That patrolman Mauricio was not a lawyer is immaterial; he was clearly authorized to represent the men and, moreover, he was probably the most knowledgeable and competent individual to do so. Under the circumstances it is inconceivable to me to claim that the men were “duped”; my conclusion is reinforced by the letter which Boland and several other. seamen sent to union headquarters stating that

Patrolman Brother Maurice met this vessel at time of payoff . . . and consulted with Agent S. D. George about whether or not this unlicensed crew of the TEXACO ILLINOIS were entitled to thirty days of penalty pay. . But Brother George gave his opinion that there was no beef and penalty pay would not be possibly payable. (Defendant’s Exhibit B at p. 210a)

The testimony regarding the oral protest is inconsistent and unpersuasive. The Shipping Commissioner, presumably disinterested, attested that there was none made; Boland’s letter suggests that there was none; and in view of the presence of the union official, and his supervision of the sign-off, it is difficult to believe that, had there been any intention to protest, Mauricio would have neglected to make the necessary and commonly accepted notations on the sign-off articles.

As for the dearth of depositions, I agree that, defendant’s counsel might have been more persevering. However, since the men obviously delegated Boland and Mauricio to act for them and to express their views, it does not seem unreasonable to determine the men’s views from the actions of their chosen representatives. Even seaman Chladek, who stated that he had not even read the release, said unequivocally that the delegates (i. e., Boland, et aI.) were in complete charge of seamen’s meetings, and he apparently did not question their authority to arrange the sign-off or the manner in which it was carried out.

With respect to the award of attorney’s fees, I concur in the remand.