state doctrine. (Defendants' Br. at 2-5). The Agreement
explicitly provides that a dispute of one country's shipowner
with seamen from the other country shall be decided in the
country of the seamen's nationality, where the employment
contract was approved and signed. (Id. at 2-3).
Next, defendants argue plaintiffs do not have a claim under
the wages statute, 46 U.S.C. § 10313 (formerly 46 U.S.C. § 596),
because it requires that allegedly withheld wages must be
true wages. In this case, defendants argue, plaintiffs were
paid all that they were entitled to, and therefore their
complaint is made in bad faith and should be dismissed. (Id. at
5-7). Furthermore, defendants assert that plaintiffs were not
discharged in Newark, but that they left in "the hope that the
penal wage statute would be applied to their wage complaints."
(Id. at 6).
Third, defendants argue that this complaint should be
dismissed on the basis of forum non conveniens, in favor of
litigation in The Philippines. (Id. at 7-13). The plaintiffs
are all Filipino, as are other key witnesses. (Id. at 10).
There are simply no connections to the United States or to New
Jersey sufficient to justify this Court's retention of this
litigation. (Id. at 10-11). Specifically, defendants' agents,
law experts and Philippine Government officials are all located
in The Philippines, and are not subject to process in the
United States. (Id. at 11). The defendants' port captain has
agreed to be deposed and attend a trial in the Philippines, but
not in the United States. He is not subject to process in the
United States. (Id.) Finally, all of the relevant evidence,
such as the contracts, are located in The Philippines. (Id.)
Defendants next argue that the law of Cyprus governs this
dispute because that is the law of the flag of the ship. Under
such law, the alleged statement of the port captain that there
would be an increase in wages was insufficient to amend the
employment contracts with the plaintiffs. (Id. at 14).
Therefore, the complaint must be dismissed. (Id.) However, the
same result would occur under the law of The Philippines, which
could apply as stated in the POEA employment contracts. (Id.)
In support of these arguments, defendants have provided the
Court with reports from legal experts in The Philippines and
Cyprus. Finally, defendants assert that even if United States
labor law applied to the employment contracts at issue, the
same result would occur because the alleged statements are too
indefinite to be enforceable. (Id. at 15).
In their fifth point, defendants argue that they are entitled
to summary judgment on the double wages issue because any
withholding was not contrary to law, arbitrary, willful or
unreasonable, as required for compensation under the penalty
wage statute. (Id. at 16).
Defendants next argue that by depositing the $200,000.00 in
an account, deemed by this Court to be as if deposited with the
Court, they have tolled the running of penalty wages, in the
event that they are subject to any such wages. (Id. at 19-20).
In the event that this Court finds that they are liable for
an unlawful withholding of the plaintiffs' wages, defendants
seek a declaratory order limiting the time duration of any
penalty period. (Id. at 20). Specifically, they urge that no
penalties accrue prior to February 10, 1990. (Id. at 23).
Defendants' ninth point is that because plaintiffs failed to
make a demand for payment, no penalties may be assessed against
them at all. (Id.) Specifically, plaintiffs' counsel stipulated
that each plaintiff would testify that he did not make a
request at any time for wages under the CCBA. (Id. at 24). In
the alternative, if the Court found that the port captain did
make an enforceable statement that higher wages would be paid,
plaintiffs Sison, Ocumin, Cantal, Condeno, Sampiano, Alday and
Bucaneg all testified that they never asked for more wages.
Therefore, their claims for penalty wages should be dismissed
for failure to make a demand for payment.
The plaintiffs have argued against each and every point that
the defendants make. Plaintiffs provide the Court with a contra
affidavit of a Filipino attorney, and an affidavit of a Cypriot
Union signatory who states that the intent of Outlook and the
Cypriot Union was to have the higher wage scales paid to the
Filipino seamen, i.e., the plaintiffs. (Neocleous Aff.,
Plaintiffs' Exh. 8 at 21). Plaintiffs also submit copies of
telexes and letters indicating that the Filipino crew was in
trouble with the Filipino Government (POEA) and blacklisted by
the industry as a result of contacting ITWF and filing this
lawsuit. (See Plaintiffs' Exhs. 27-30). Both sides have
provided additional information which this Court will refer to
In the interests of efficiency, this Court will first
consider those aspects of the motions which would dismiss the
entire complaint. Specifically, the Court will first consider
the act of state doctrine. Resolution of this motion includes
this Court's use of the additional information submitted by the
parties. Accordingly, this motion to dismiss will be treated as
a motion for summary judgment. See Fed.R.Civ.P. 12(b).
A. Standards Governing Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment
should be granted "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." See also Chipollini v. Spencer
Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert.
dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987).
In deciding a motion for summary judgment, the facts must be
viewed in the light most favorable to the nonmoving party and
any reasonable doubt as to the existence of a genuine issue of
fact is to be resolved against the moving party. Continental
Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). The
moving party has the burden of establishing that there exists
no genuine issue of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The Supreme Court stated that in applying the criteria for
granting summary judgment,
the judge must ask himself not whether he thinks
the evidence unmistakably favors one side or the
other but whether a fair-minded jury could return
a verdict for the plaintiff on the evidence
presented. The mere existence of a scintilla of
evidence in support of the plaintiff's position
will be insufficient; there must be evidence on
which the jury could reasonably find for the
plaintiff. The judge's inquiry, therefore,
unavoidably asks whether reasonable jurors could
find by a preponderance of the evidence that the
plaintiff is entitled to a verdict. . . .
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct.
2505, 2512, 91 L.Ed.2d 202 (1986). A fact is "material" only if
it will affect the outcome of a lawsuit under the applicable
law, and a dispute over a material fact is "genuine" if the
evidence is such that a reasonable fact finder could return a
verdict for the nonmoving party. (Id.)
B. The Act of State Doctrine and Penalty Wage Statute
The act of state doctrine is a consequence of domestic
separation of powers, reflecting "the strong sense of the
Judicial Branch that its engagement in the task of passing on
the validity of foreign acts of state may hinder" the conduct
of foreign affairs. Kirkpatrick Inc. v. Environmental Tectonics
Corp., 493 U.S. 400, 404, 110 S.Ct. 701, 704, 107 L.Ed.2d 816,
822 (1990) (quoting Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398, 423, 84 S.Ct. 923, 937, 11 L.Ed.2d 804 (1964)). The
doctrine may be summarized as follows:
Courts in the United States have the power, and
ordinarily the obligation, to decide cases and
controversies properly presented to them. The act
of state doctrine does not establish an exception
for cases and controversies that may embarrass
foreign governments, but merely requires that, in
the process of deciding, the acts of foreign
sovereigns taken within their own jurisdictions
shall be deemed valid.