CAPE SHORE FISH CO., INC. v. THE UNITED STATES, 165 Ct. Cl. 630

Per Curiam : This case was referred pursuant to Buie 45 to Herbert N. Maletz, a trial commissioner of this court, with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in a report filed January 24, 1963. Exceptions to the commissioner’s report were taken by the plaintiff, briefs were filed by the parties and the case was submitted to the court on a waiver of oral argument by counsel.

Since the court is in agreement with the findings and recommendation of the trial commissioner, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Plaintiff is therefore not entitled to recover and its petition is dismissed. OPINION OE COMMISSIONER Cape Shore Fish Co., owner and operator of the Lau/ren Fay, a boat engaged in fishing for scallops out of New Bed-ford, Massachusetts, has brought this action for refund of social security and unemployment taxes it paid for 1953 and 1954 with respect to the captains and crews of the vessel.

Section 1410 of the Internal Bevenue Code of 1939, 26 U.S.C. § 1410 (1952), imposed a social security excise tax on every “employer” of 1 %% in 1953 and 2% in 1954 of “wages” paid by him with, respect to “employment”. “Wages” were defined in

section 1426(

a) as “all rennmeration for employment”, with exceptions not relevant here. “Employment” was defined in

section 1426(

b) as “* * * any service, of whatever nature, performed after 1950 * * * by an employee for the person employing him * * * on or in an American vessel * * *” “Employee” was defined in

section 1426(d) (2) as “any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee * * *”

Section 1600 of the 1939 Code imposed an unemployment excise tax of 3% on every “employer” of “wages” paid by him with respect to “employment”. Sections 1607 (

c) and 1607 (

i) of the Code defined “employment” and “employee” comparably to sections 1426 (

b) and 1426(d) (2). The sole issue in this action is whether the captains and other crew members of the Lauren Fay were employees within the meaning of sections 1426(d) (2) and 1607 (i). During the years in question, the operations of the Lauren Fay were largely governed by provisions of a so-called Independent Scallopers Agreement — a standard form union contract — to which Cape Shore and the Atlantic Fishermen’s Union were parties. The owner hired the captain of the Lauren Fay and had the right to fire him at the end of any trip.

In practice, the captain was hired with the understanding that if he performed in a manner satisfactory to the owner, his services would be continued; in fact, the owner made every effort to retain a skipper so long as he did a good job. Thus, the first captain continued on for the vessel’s first 25 trips; a successor hired in 1954 served for most of that year until fired by the owner. No special license or papers were required to become a captain; it was enough to be a practical fisherman with at least three years’ experience.

In accordance with the custom in the industry, the captain hired and fired the crew and supervised and controlled the crew’s activities at sea. Since the success of the voyage depended on the combined shill of all hands, the captain tried to obtain qualified fishermen as crew members. Ordinarily a person became a good fisherman after five or sis trips. As in the case of its captain, some crew members remained with the boat for repeated voyages. In 1953, for example, two crew members accompanied the boat on all its 25 trips to sea, and five accompanied it on 16 or more trips.

Each captain of the Lauren Fay followed the owner’s instructions when they were given and considered that the owner had authority to give him instructions, such as when to return to port, when to paint the boat, and whether liquor would be permitted aboard. The captain was required to telephone the owner a day or two before the end of the voyage and to report on the amount of the catch, what troubles were experienced, and what repairs, if any, were needed. At that time the owner usually instructed the captain to have the boat docked before 5:00 P.M.

The captain felt that if he did not follow the owner’s instructions, he might be fired. A captain did not give instructions to the owner; rather, he made suggestions concerning the vessel’s operations which the owner might or might not follow. In accordance with a practice understood and agreed to by the owner and the captain and crew, the Lauren Fay stayed at sea for seven or eight days, or until some 11,000 pounds of scallops were caught, whichever first occurred.

The union contract specified that while at sea the hours of labor for the captain and crew were to be no more than six hours on watch and no less than six hours off between a watch. The contract also specified that the captain and crew were to be afforded a four-day rest period ashore after the boat docked. By virtue of the contract, and in accordance with custom, the boat left port the day after the rest period ended, barring bad weather or the need for laying up for repairs. The union contract prohibited departure earlier than 9:00 A.M. or later than 5 :00 P.M.

Within this period, the captain fixed the exact sailing time. Fishing was generally done in an area between George’s Bank and Nantucket Shoals, some 100 miles from New Bed-ford, at a location determined by the captain. When the vessel docked, its catch was sold at public auction in the New Bedford “selling rooms” to the highest bidder. The captain could reject the final bid and have the catch held over and again put up for auction on the next day. This right of holding over was never exercised during the years in question.

The purchaser of the catch paid for it by a check made out to the vessel and the check was deposited in the owner’s accounts. The owner then distributed the proceeds in accordance with the following formula referred to in the fishing industry as the “lay”: From the total proceeds or “gross stock”, there were deductions (referred to as “gross expenditures”) for fixed amounts called “pers” for the engineer, mate and cook; for per diem charges for rental of a fathometer; the cost of scallop bags; the cost of a watchman; and for the New Bedford Fishermen’s Benevolent Fund.

The remainder, was referred to as the “net stock”. Thirty-five per cent of the net stock was kept by the owner as the “boat share”. From this 35%, the owner paid the captain 10% for his services and $25.00 to the engineer. Sixty-five percent of the net stock was the crew’s share. From this the owner deducted and paid to the respective suppliers the amounts for the crew’s groceries, fuel, lubrication oil and the ice in which the bagged scallops were packed.

The owner then distributed the remaining amount equally among the members of the crew, including the captain, after having made deductions for withholding of Federal income and social security and unemployment taxes. In its Federal income tax returns, the owner claimed as deductions under the heading “Salaries and Wages” all amounts paid to the captain and crew. After the catch was sold, the fishermen, including the captain, unloaded it. If a fisherman preferred not to help unload, a substitute, called a “lumper”, could be hired. The lumper’s wages were deducted from the fisherman’s share of the lay.

If tlie individual’s share of the voyage was less than $10.00 per man, the trip was considered a “broker”, and if the boat were at sea at least five days, the owner was required by the union contract to pay at least $1.00 a day to the captain and each member of the crew. The custom in the industry was that if the same crew sailed on the next trip, all expenses of the broker, including those for the crew’s groceries, fuel and ice, would be combined with those of the next trip, and the two trips considered as one for purpose of making distribution of the proceeds from the catch.

But if a different crew sailed on a trip following a broker, the owner was responsible for all expenses of the broker. The union agreement provided for “maintenance and cure” of $3.00 per day to the captain and each member of the crew. The crew’s groceries and other supplies were ordered by the captain or cook on the owner’s credit. The owner was responsible for payment of these bills. All repairs for the boat were paid by the owner, and major repairs could not be undertaken without the owner’s authorization. The owner carried and paid for all insurance on th& Lauren Fay.

The fishermen supplied their own clothing and rough-weather gear, together with a scalloping knife which cost about $1.50. The owner provided all the gear used in dredging scallops from the ocean floor. Neither captain nor crew had any investment in the boat. When tbe boat was in port and painting or other work was necessary, crew members who performed such work were paid $10.00 per day. Plaintiff says that on the basis of the above facts the captain and fishermen were not employees within the meaning of sections 1426(d) (2) and 1607(

i) of the 1939 Code, both of which specifically adopt the common-law test for ascertaining the existence of the employer-employee relationship. The touchstone for determining the presence or absence of an employer-employee relationship is, of course, whether the person performing the services for another is subject to the other’s control or right to control.

Degrees of control, opportunities for profit or loss, investment in facilities, permanency of relation and skill required are important in determining status as employee or independent contractor, but no one factor is controlling nor are these factors exclusive. The relationship is to be ascertained by an over-all view of the entire situation, not by any rule of thumb, or by the presence or absence of a single factor. The result in each case must be governed by the special facts and circumstances of the case itself. United States v. Silk, 331 U.S. 704, 716 (1947); Bartels v.

Birmingham, 332 U.S. 126 (1947); Enochs v. Williams Packing Co., 370 U.S. 1, 2 (1962); De-Raef v. United States, 108 Ct. Cl. 255 (1947); Thornton v. United States, 121 Ct. Cl. 520 (1952); Weatherguard Corp. v. United States, 137 Ct. Cl. 359 (1957); Edwards v. United States, 144 Ct. Cl. 158 (1958); Meredith Publishing Co. v. Iowa Employment Security Comm., 232 Iowa 666, 6 NW 2d 6 (1942). While the formula for determining whether one person working for another is an employee or independent contractor is a simple one, this is largely “illusory because it is more largely simplicity of formulation than of application.

Few problems in the law have given greater variety of application and conflict in results than the cases arising in the borderland between what is clearly an employer-employee relationship and what is clearly one of independent, entrepreneurial dealing.” NLRB v. Hearst Publications, 322 U.S. 111, 121 (1944). In this context, the first problem is to determine whether the Lauren Fay's captain was an employee or independent contractor.

This depends essentially on whether the owner had the right to exercise control over details of operating the boat (signifying the owner’s right to exercise control over the captain) or whether the captain conducted his own fishing business and was merely paying the owner hire for the use of the boat. In the latter event, the captain would have been a demise or bareboat charterer and in the eyes of the law the owner pro hac vice. Gilmore & Black, Admiralty 216 (1957).

Generally, in the maritime industry hire (or rent) under a demise charter is on a pre-determined lump-sum basis, depending on the size of the vessel and the term of the charter. However, in the fishing industry it is customary that a boat be chartered to a master not for a lump sum but for a share of the proceeds from the fishing operation. Cromwell v. Slaney, 65 F. 2d 940, 941 (1st Cir. 1933).

Obviously, when the owner charters on this share or lay basis, he has a greater incentive from a profit standpoint to exercise more control over the vessel’s operations than an owner who has chartered on a fixed lump-sum basis. For this reason, in the fishing industry it is frequently difficult to determine whether the master is a charterer (independent contractor) or an employee of the owner. Here the salient considerations are these: The owner hired the captain and had the right to fire him at the end of any trip. This is compatible with an employer-employee relationship for one does not “fire” a charterer.

The owner’s policy was to keep a captain as long as he did a satisfactory job. Hence, the relationship between owner and captain was a reasonably permanent and continuing one necessary in carrying on the owner’s business. The captain felt bound to follow various instructions given by the owner. Not only is this recognition of an employer-employee relationship, it negates any implication that the captain was owner pro hac vice under a charter. As was customary in the fishing industry, the captain and not the owner hired the crew.

However, the owner exercised some control over hiring in that he instructed the captain to hire fishermen who would work longer hours than prescribed by the union contract. Certain details of the fishing operation, such as how much time elapsed between trips and the maximum number of hours the captain and crew could work while the boat was out to sea, were governed by the union contract to which the owner was a party and the captain and crew beneficiaries. These requirements are consistent only with an employer-employee relationship.

Other details of the fishing operation, such as how long the boat remained at sea, were governed by custom in the trade and agreed to by the owner and captain. While the owner, in accordance with custom, did not tell the captains in what part of the waters within reach of New Bedford to fish for scallops, this is not incompatible with an employer-employee relationship.

The captain was presumably hired for the reason, among others, that he was familiar with the location of choice fishing areas near New Bedford, and as in the case of a manufacturer employing a skilled artisan or specialist, the owner had neither the knowledge nor the desire to interfere with his methods. See Restatement of the Law, Agency 2d §220, comment (i). The owner carried and paid for a full line of insurance on the vessel and crew; had authority to order major repairs on the boat; and was responsible for payment for all repairs.

Were the captain the owner pro hac vice, these matters would have been within his cognizance. Except for the provision that he was to receive 10% of the owner’s share, the captain’s share of the proceeds was figured under the union contract in the same manner as the crew’s. Furthermore, it was the owner’s duty to pay the captain maintenance and cure. The owner’s obligation in this respect is the clearest kind of recognition of an employer-employee relationship since maintenance and cure is available only to an employee of a ship owner, not to an independent contractor.

Similarly the owner’s duty to pay the captain at the rate of $1.00 per day in the event the trip were a “broker” is characteristic of employment status, not of a charter relationship. The owner’s responsibility for paying all bills for food and supplies is further indication that an employer-employee relation was contemplated. If the captain were owner pro hac vice, it would have been his responsibility — not the vessel owner’s — to pay such bills. Cromwell v. Sidney, 65 F. 2d 940, 941 (1st Cir. 1933); The Carrier Dove, 97 F. 111 (1st Cir. 1899).

Further factors indicating that the captain was an employee and not the owner pro hac vice are these: payment for the catch was made by the buyer to the owner, not the captain, and deposited in the owner’s accounts; the owner paid the captain and crew their share of the proceeds; all accounting details with respect to the fishermen’s shares were handled by the owner’s accountant, not by the captain. In

summary, the owner had the right to hire and fire the captain and to give him instructions of various kinds. The owner was party to arrangements governing the duration of the fishing voyage, the hours of work aboard the vessel while at sea, the period of rest ashore, and the vessel’s permissible departure time. The owner was obligated to pay the captain maintenance and cure if he was injured at sea; also to pay him specified per diem compensation in the event a trip was a broker.

The owner was responsible for all repairs, for all indemnification and other insurance on the boat, for payment of all bills for food and supplies, for paying the captain and crew their share of the proceeds, after receiving payment for the catch, and for handling all accounting details.

These factors establish that the owner had a right to and did exercise control over details of operating the Lauren Fay; that the fishing business carried on was the owner’s and not the captain’s; and that the captain was not owner pro hac vice under a charter arrangement. “Retention by the general owner of such command, possession and control is incompatible with the existence at the same time of special ownership in the charterer.” The Norland, 101 F. 2d 967, 971 (9th Cir. 1939). Or as Justice Holmes said in Paine v. Silva, 168 Mass. 432, 47 NE 118 (1897): * * * in the case at bar there was no such letting.

The general owners remained in control of the vessel. There is nothing to qualify that conclusion hi the fact that the vessel was sailed on what is called the “Province-town Lay,” by which the master receives a commission from the proceeds of the fish caught, and then, subject to certain other deductions, the proceeds are divided between owners and crew in a fixed proportion. If the captain was not owner pro hac vice, neither was he a partner with the owner.

He had no investment in the Lauren Fay; shared none of the expenses of repairs; did not share losses; and was not liable to third parties for supplies used during the voyage or for debts of the vessel. “Where the master of a ship contracts to receive a certain proportion of the profits in lieu of wages, this does not constitute him a partner with the owner.” Brown v. Hicks, 24 F. 811, 813 (C.C.D. Mass. 1885). Accord Coffin v. Jenkins, 5 Fed. Cas. 1188 (No. 2948) (C.C.I). Mass. 1884); The Dirigo First, 60 F. Supp. 675 (D. Mass. 1945). Cf. Julio v.

Ingalls, 1 Allen (Mass.) 41 (1861), where a contribution of $1000 by the master made him a partner. See also Domandich v. Doratich, 5 P. 2d 310 (Wash. 1931). Turning to the status of members of the crew, the important distinction between them and the captain is that they were hired and fired by the captain and were subject to his direct supervision and control. Aside from that, most of the factors governing the relationship between owner and captain are equally applicable in respect of the relationship between the owner and crew. Thus,

Article 1 of the union contract provided that it “shall apply to and cover all fishermen, including captains who are not owners, mates, deckhands, engineers and cooks. * * *” In signing the contract the owner agreed, among other things, to recognize the union; to require the captain and crew members to join the union; to make reasonable provisions for the health and safety of the captain and crew during the course of operations; to furnish to the captain and crew information with respect to withholding of Federal taxes; and to make payments to a fund established to provide benefits to widows and dependents of fishermen.

Though the union contract is not conclusive as to the existence of an employer-employee relationship, such contractual provisions are of the kind an employer normally enters into with a union representing employees. They would be highly unusual provisions in a partnership agreement or in an agreement with an independent contractor. In a partnership or independent contractor relationship, each party would ordinarily make his own provisions for health and safety, prepare his own withholding statements for tax purposes, and make his own arrangements for retirement and disability.

An employer is often expected or required to take care of certain administrative and financial obligations of his employees. A partner or independent contractor is expected to handle these matters himself.

It is relevant too that the owner withheld income taxes before paying the captain and crew their share of the proceeds of the catch, and that on its income tax returns, it treated all proceeds of the catch as its gross income; all expenses for supplies, including those deducted from the crew’s share of the gross stock, as its deductions ; and all amounts paid to the captain and crew as its deductions characterized as “salaries and wages”.

The fact that the captain and crew received compensation not on a fixed-sum basis but by sharing in the proceeds of the voyage under the “lay” system does not derogate from an employer-employee relationship. The “lay system” is as old as the New England fishing industry itself. See 2 U.S. Comm. of Fish and Fisheries (Goode editor), Fisheries Industries of the United States (1884), Parts I-III. Indeed, in ancient times it was customary that not only fishermen but merchant seamen as well shipped for a share of the profits.

By 1836, “agreements by which, seamen (were) to participate in the adventure, and to derive their reward from its success, (were) rare, and (were) probably limited, in commercial experience, to privateering and fishing voyages. * * *” Reed v. Hussey, 20 Fed. Cas. 440, 444 (No. 11646) (S.D.N.Y. 1836). But even in 1836 it was well recognized that “such agreements do not constitute partnerships, but are merely a hiring of the seamen, and the shares agreed upon are wages, and are recoverable as such.” Reed v. Hussey, supra. And as early as 1844 Justice Story made this comment (Coffin v. Jenkins, 5 Fed.

Cas. 1188 (No. 2948) (C.C.D. Mass.)): This lay or share does not, according to law, create any partnership in the profits of the voyage, as has been sometimes erroneously supposed; but it is in the nature of wages for seamen in the common merchants service, and is governed by the same rules. * * * Indeed, I consider it too well settled now to admit of any reasonable doubt. United States v.

Laflin, 24 F. 2d 683, 685 (9th Cir. 1928), is in the same vein: It has been the maritime law from the time of Oleron that agreements, by which seamen, engaged in a fishing or whaling voyage, are to receive for their services shares of the profits of the voyage, are contracts of hiring, and the shares so agreed upon are in the nature of wages, to recover which actions may be maintained after the end of the voyage.

A further factor is that members of the Lauren Fay's crew were unskilled and could become good fishermen after a half dozen trips. “Unskilled labor is usually performed by those customarily regarded as (employees) ”. Restatement of the Lam, Agency td, § 220, comment (h); Tapager v. Birming ham, 75 F. Supp. 375 (D. Iowa 1948). Likewise it is pertinent that members of the crew had no investment in the boat, shared none of the expenses of repair, did not share losses and were not liable to third parties for supplies used during the voyage or for debts of the vessel.

Still another indication of employment status was the owner’s carrying of protection and indemnity insurance for the vessel. Under the Jones Act, 46 U.S.C. § 688 (1952), an injured seaman may sue the owner for injuries caused by negligence of the owner or a fellow seaman, but only if he “first establish that there existed between him and the defendant at the time of the injury the relationship of employer and employee.” Nolan v. General Seafoods Corp., 112 F. 2d 515, 517 (1st Cir. 1940). See also Hudgins v. Gregory, 219 F. 2d 255 (4th Cir. 1955); Mason v. Enanisevich, 131 F. 2d 858 (9th Cir. 1942); Osland v.

Star Fish & Oyster Co., 107 F. 2d 113 (5th Cir. 1939); The Norland, 101 F. 2d 967 (9th Cir. 1939); Cromwell v. Slaney, 65 F. 2d 940 (1st Cir. 1933); Justillian v. Versaggi, 169 F. Supp. 71 (SD Tex. 1954); and Domendich v. Doratich, 5 P. 2d 310 (Wash. 1931). And see Cambra v. Santos, 233 Mass. 131, 123 NE 503 (1919).

Thus the fact that the owner carried and paid for insurance indemnifying it for all suits brought against it by the captain and crew occasioned by accidents at sea and that neither the captain nor crew carried such insurance is a reflection of the owner’s recognition of its liability for accidents at sea resulting from negligence of the owner or crew. So, too, it is recognition by the captain that he did not need such protection. This is compatible only with the understanding of the parties that the owner was the employer of the captain and crew and that the captain was not the crew’s employer.

See Southern Shell Fish Co. v. Plaisance, 196 F. 2d 312 (5th Cir.1952); O'Hara Vessels, I no. v. Hassett, 60 F. Supp. 672 (D. Mass. 1942). The owner’s obligation to pay maintenance and cure is similar indication of the crew’s employee status. “In the United States this obligation has been recognized consistently as an implied provision in contracts of marine employment * * * [and is] an incident of the marine employer-employee relationship.” Aguilar v. Standard Oil Co., 318 U.S. 724, 730 (1943). See also Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527 (1938); Knight v. Parsons, 14 Fed. Cas. 776 (No. 7886) (D.

Mass. 1855); The City of Avalon, 156 F. 2d 500 (9th Cir. 1946); The Montague, 53 F. Supp. 748 (WD Wash. 1943). It is also of some significance that the proceeds from each catch were paid to the owner, deposited in the owner’s accounts, and distributed by the owner to captain and crew on the share basis; and that pursuant to the union contract, the owner was required to make a detailed accounting with the captain and crew as to the proceeds from the catch and the specific deductions therefrom.

Implicit in this is the parties’ understanding that the owner had the property interest in the catch and hence controlled the fishing business. Indeed, in ascertaining the question of control the owner’s duty to account was given particular weight in Harding v.

Souther, 12 Cush (Mass.) 307 (1853): And a most significant provision, showing not only an interest, but the entire control over the voyage as owner, is the stipulation that * * * (the owner) will render a just and true account of the sales of all the fish which may be delivered to him by the master, and will account with the master or with each fisherman for their respective shares or proportions. This contains a clear implication that all the fish are to be delivered to the owners, who are. to sell them and account to the various fishermen entitled to the proceeds * * *.

From all this, the conclusion is apparent that the captains and crew of the Lauren Fay were during the years in question employees of the owner of the vessel within the meaning of the social security and unemployment tax statutes. This conclusion is in harmony with the holding of the Federal District Court in Massachusetts where on similar facts the same result was reached. O'Hara Vessels, Inc. v. Hassett, 60 F. Supp. 672 (D. Mass. 1942). There the plaintiff owned fishing boats weighing over 10 tons which apparently operated out of Boston.

Compensation of captain and crew was computed on a “lay” or share basis essentially the same as that involved here. Supplies were ordered by the captain. The captain hired and fired the crew, and determined when the boat fished and when it returned to port. The terms and conditions of employment of captains and other crew members were covered by a union contract with the Atlantic Fishermen’s Union (the union involved in this case). Ordinarily the captain received no detailed instructions from the owner with respect to handling the crew.

In the rare cases when there were “brokers” the owner at different times gave the crew approximately $5 each. The owner paid for liability insurance, and from time to time claims were presented by crew members to the insurance company under these policies and the claims' settled by the company. The issue in that case — the same as here — was whether captains and other crew members on plaintiff’s boats were “employees” within the meaning of sections 1410 et seq. of the 1939 Code.

The court held plaintiff was the “employer” of the captains and crews within the meaning of these Code sections, and hence (at 674) “that the plaintiff is liable for taxes on account of the ‘employment’ of the captains and members of the crews of the five vessels here in controversy * * ^”. In 1950 the Supreme Court of Massachusetts decided Commonwealth v. McHugh, 326 Mass. 249, 93 NE 2d 751, which involved an antitrust action brought by the Commonwealth against the Atlantic Fishermen’s Union and certain of its officers.

One of the defenses raised was that the State had no jurisdiction to try defendants, since their activities were covered by the terms of the Federal Fishermen’s Cooperative Marketing Act, 15 U.S.C. §§ '521, 522 (1958), which permitted “persons engaged in the fishery industry, as fishermen * * *” to act together in associations to catch, produce and market their products, and which provided a Federal remedy for antitrust violations by such associations.

The court, in dealing with this defense, said (at 764) the Act dealt only with— associations of independent entrepreneurs each of whom, or at least most of whom, are engaged in fishing on their own separate accounts * * * and not to a labor union of fishermen employed by others. It then continued {ibid.) : The defendants are employees of the vessel owners and not entrepreneurs on their own accounts. They so insist in their brief.

According to former decisions of this court they do not own the fish which they catch * * * although, so long as they work under the lay system of compensation, they have an interest in the price which the fish brings. Plaintiff’s counsel in support of his contention that the captain and crew were not employees has cited Maniscalco v. Director of Division of Employment Security, 327 Mass. 211, 97 NE 2d 639 (1951); Local 36 of International Fishermen & Allied Workers of America v. United States, 177 F. 2d 320 (9th Cir. 1949); and Crawford Packing Co. v. United States (SD Tex.), 228 F.

Supp. 549, aff'd United States v. Crawford Packing Co., 330 F. 2d 194. Maniscalco involved the question of whether there was evidence to support a finding that crew members of certain fishing boats were “employees” within the meaning of a Massachusetts unemployment compensation statute which, the court said, followed the common law definition. The court held that on the record presented there was no evidence to support a finding of employee status.

But the evidence presented in that case differs from the facts of this case in the following important respects: no orders of any kind were ever given by the owner, even if he went on the trip himself; all decisions, such as where to fish, the type of fishing, the duration of the trip and the selling price of the catch, were decided by a majority vote of the crew, with the owner’s vote, if he went on the trip, counting the same as any other member; there were no provisions of any kind for a minimum wage in the event of a “broker”; the loss was carried over to the next trip and “the owner was entitled to collect from a member his share of the loss”; there was apparently no union representing crew members, and no written employment contract of any kind.

The opinion itself in Maniscalco recognized the distinction between the facts in that case and a case such as the present one.

It referred (at 215) to testimony given by the Secretary-Treasurer of the Atlantic Fishermen’s Union (the union involved here) “which, based on practices and customs with which he was familiar, tended in the opposite direction.” This testimony was not considered by the court since it was “about boats that the Atlantic Fishermen’s Union had under agreement” and “he did not know about the Italian fleet, the boat owners in question.” The narrow basis of the court’s decision in Maniscalco is shown by the concluding paragraph of the opinion (at 642) : We are not to be understood as laying down a rule of law that fishermen shipping on boats on the “share” or “lay” basis are not employees of the owner.

The question is one of fact. * * * We hold only that on the records here the judge correctly ruled that the decisions of the board to the effect that the petitioners were “employers” were not supported by the evidence. On other evidence the result might very well loe otherwise. (Emphasis added.) Two of the cases cited in support of the last sentence just quoted were Commonwealth v. McHugh, supra, and O'Hara Vessels, supra, both of which held fishermen were employees of the boat owner.

Hence the court expressly recognized as correct its earlier decision and the decision of the Federal District Court for the District of Massachusetts that captains and crews of fishing boats represented by the Atlantic Fishermen’s Union and operating under the union contract in the manner in which the present plaintiff’s boat operated in 1953 and 1954 were employees. The Local 36 case involved a criminal antitrust indictment for price fixing and related illegal activities.

The court, in sustaining a conviction, considered appellants’ argument that the activities found illegal were legitimate activities of a labor union bargaining for increased wages. It held this argument invalid for several reasons, one of which was that, based on the evidence, “no inference that Local 36 is a labor union could be drawn” (at 330).

This evidence was that “a large proportion of the members of the association (Local 36) owned and operated their own boats and gear”; “well over half of these members classify themselves as self-employed fishermen”; and there were “numbers of these boats which have only the operator and owner himself aboard” (at 329).

Furthermore “(a)lthough there was a possibility of employment between the captain and the fishermen in the same boat, that was not the attitude of the fishermen themselves.” On the contrary, the court (at 329) found it “noteworthy that, as to the time on which they embark upon a fishing trip, the locality to which they go, the type fish which they intend to take defends upon agreement between the individual fisherman in a boat and the captain.” (Emphasis added.) See also Gulf Coast Shrimpers and Oystermen’s Ass’n v. United States, 236 F. 2d 658 (5th Cir. 1956).

That Local SB and the present action have little in common is evident. There is no analogy between captains and crews of the Laniren Fay and a self-employed fisherman who owns his own boat. Nor were crew members on the Lauren Fay consulted about when to fish or where to fish. They were told what to do by the captain, who in turn felt bound to follow instructions given by the owner and was subject to the terms and conditions of the union contract.

In Crawford Paching, boat owners successfully maintained an action for refund of social security and unemployment taxes paid with respect to fishermen engaged in fishing shrimp in the Gulf of Mexico. After lengthy findings of fact the District Court for the Southern District of Texas concluded that the fishermen were not employees, stating: The essential facts of this case are not different from those considered by the United States District Court for the Southern District of Mississippi in the case of Williams Packing & Navigation Co., Inc. v. J. L. Enochs * * * 176 F.

Supp. 168 and affirmed 291 F. (2d) 402 (5th Cir. 1961), certiorari granted * * * 368 U.S. 937. The District Court there found that the shrimp fishermen were not employees under the Social Security Act. * * * The decision in Williams Paclcmg upon which the conclusion in Crawford. Packing was based has since been vacated and remanded by the Supreme Court with direction to dismiss for lack of jurisdiction. 370 U.S. 1 (1962).

In the Williams case the District Court had found, among other things, that shrimp and oyster fishermen were not employees of the boat owner and enjoined the Government from collecting social security and unemployment taxes from a company engaged in providing trawlers for such fishermen.

The Supreme Court emphasized (at 8) that in general “The Act prohibits suits for injunctions barring the collection of federal taxes‘when the (collecting) officers * * * have made the assessment and claim that it is valid.’ ” The Court added that the “record * * * clearly reveals that the Government’s claim of liability was not without foundation.” (370 U.S.8) Plaintiff further argues that sections 1426(b) (15) and 1607(c) (17) of the 1939 Code are unconstitutional because they discriminate between vessels over 10 tons and vessels under 10 tons. The settled law is to the contrary. Carmichael v.

Southern Coal Co., 301 U.S. 495, 510-12 (1937) ; Steward Machine Co. v. Davis, 301 U.S. 548, 584 (1937). FINDINGS OF FACT 1. Plaintiff, Cape Shore Fish Co., Inc. (Cape Shore), is a corporation duly organized under the the laws of the State of Massachusetts and was so duly organized during 1953 and 1954, the period involved in this suit. 2. The fishing boat known as the Lauren Fay was owned and operated by Cape Shore during the years 1953 and 1954 and was engaged in the business of fishing for scallops out of the port of New Bedford, Massachusetts.

The boat weighed more than 10 tons and was manned during most of the period involved herein by a crew of 11 members. 3. Cape Shore paid the taxes set forth in paragraph 7 of its petition and has, in accordance with applicable statutes, filed timely refund claims which were disallowed by the Internal Revenue Service on or about January 15, 1958. 4. Israel Kestenbaum was the president and controlling stockholder of Cape Shore during 1953 and 1954. He and members of his family owned all the stock of the corporation. Mr. Kestenbaum was a resident of New York City in 1953 and 1954.

He was not familiar with the New Bedford fishing industry and had never sailed on a fishing boat. 5. In scalloping the boat uses dredges with steel frames, which are towed along the ocean floor. A bag is connected to the steel frame by a flexible chain to catch the scallops dredged from the ocean floor by the steel frames. Periodically the dredges 'are landed in the middle

section of the boat and the contents of the bags dumped out on deck. The scallops are picked up in bushel wire baskets, dumped into shucking boxes, and then opened by the fishermen. The usable parts are thrown into a bucket, while the shells and unusable parts are discarded overboard. When a man’s bucket is full, he dumps the contents into a washer, after which the scallops are packed in bags and stored in the hold with ice until the boat returns to port. 6. (

a) During 1953 and 1954, scallops caught by the Lauren Fay were sold at auction in New Bedford. When the boat docked, the captain or mate went to the auction room and notified a person participating in the marking of the auction board — who would be either the manager of the Sea Food Producers’ Association of New Bedford or a union official — as to the number of pounds of scallops that were aboard. The vessel’s name and the weight of scallops on board were then listed on the auction board. The auction began at 7:00 A.M. and bids were accepted from buyers until a bell rang at 7:30 A.M. closing bids.

At that time the person who had submitted the highest bid was bound to buy the catch. On the other hand, the captain or the mate representing the vessel had an option either to sell the catch to the highest bidder or to hold it over until the next day when it was again listed on the auction board. This decision as to whether to sell or not at the first day’s auction had to be made by the captain or the mate one-half an hour after the auction’s termination. In making the decision, the captain or the mate often consulted with the other members of crew.

Even though the owner were present in the auction room, his advice as to whether to accept the bid or hold the catch over to the next day’s auction was neither solicited nor accepted. (

b) The catch of the Lauren Fay was never held over in 1953; nor is there any evidence in the record that it was ever held over in 1954. (

c) The sale of the catch was made when the buyer and the captain or the mate signed a sales slip. After that the boat proceeded to the dock of the buyer where the catch was unloaded. (

d) The buyer paid for the catch by making out a check to the boat Lauren Fay. 7. (

a) During the years 1953 and 1954, the proceeds from the sales of the catches of the Lauren Fay were distributed in accordance with

Article 11 of an “Independent Scallopers Agreement” (see finding 11, infra) that was executed by Mr. Kestenbaum on behalf of Cape Shore and the Atlantic Fishermen’s Union on behalf of the captain and crew. This

Article did not change the procedures that had been followed prior to the agreement; in fact, the

Article reflected the prevailing and customary method used in the past. (

b) After each trip the formula for the distribution of the proceeds of the catch — which is referred to as the “lay”— was computed by Harry S. Auerbach, a certified public accountant retained by Cape Shore, as follows: The captain by telephone informed Mr. Auerbach of the amount of the total proceeds of the catch which is referred to as the “gross stock”. He also informed him as to the number of pounds caught; the price per pound; the amount of the check for the catch; and the name of the buyer. The following deductions (referred to as “gross expenditures”) were then made by Mr. Auerbach from the “gross stock” figure to arrive at a “net stock” figure:

(1) Amounts called “pers” for the engineer ($15), the mate ($10), and the cook ($10); (2) $1.50 per day, trip to trip, for rental of a fath-ometer ;

(3) The cost of the bags used in packing the scallops;

(4) The cost of a watchman hired to guard the boat in port when it had either scallops or groceries aboard; (5) % of 1% for the New Bedford Fishermen’s Fund. The “net stock” was divided into two shares: 85% of the net stock was the boat owner’s share; 65%, the crew’s share. From the crew’s share there were deducted the amounts for food, fuel, ice, icing and water. The remaining amount was then divided equally among the members of the crew, including the captain. The captain was, in addition, paid 10% of the boat owner’s share. Also from the boat share, $25 was deducted for the engineer.

During 1953 and 1954, it was the practice of the captain of the Lauren Fay to pay the mate $15 from the captain’s share. (

c) Before anything was paid to the crew, further deductions were made for withohlding of Federal income taxes and Federal Insurance Contributions Act (FICA) and Federal Unemployment Tax Act (FUTA) taxes. In computing the amount of FICA and FUTA taxes, the cost of the food consumed during the trip was added, fro rata, to the share of each individual crew member. The cost of the food, however, was not added in computing taxable income for Federal withholding tax purposes. 8. (

a) In 1953 and 1954, Cape Shore maintained two bank accounts, a general account and a payroll account. When a catch was sold, it was paid for by the buyer by a check made out to the boat Lauren Fay. The check was then deposited in the two accounts maintained by Cape Shore, as follows: 30% was deposited in the general account, and 70% in the payroll account. The members of the crew were paid by checks drawn on the payroll account. Either Mr. Kestenbaum signing alone or Mr.

Auerbach, the accountant retained by Cape Shore, and the captain of the vessel signing jointly, had authority to draw checks on the payroll account. From the amount deposited in the payroll account, an amount equal to the total cost of food, fuel, ice, water, bags and contributions to the New Bedford Fishermen’s Fund was transferred to Cape Shore’s general account. All bills for these items were then paid out of the general account on which Mr. Kestenbaum had sole authority to draw. If Mr. Kestenbaum were in New York, checks in payment of these bills were prepared by Mr. Auerbach in New Bedford and sent to Mr.

Kestenbaum in New York City for signature. Occasionally Mr. Kestenbaum delegated authority to his son-in-law to sign checks drawn on the general account. (

b) Supplies and food for the boat were ordered by the captain or other crew members (i.e., the cook) on Cape Shore’s credit; no cash payment was made. Cape Shore and not the captain or crew was responsible for payment of these bills. 9. Mr. Kestenbaum, as the controlling stockholder, ordered the Lauren Fay built for Cape Shore. Cape Shore carried and paid for all types of insurance, including fire, damage, collision, liability, and protection and indemnity insurance for the fishermen, which was necessary for the operation of the boat.

The insurance protected Cape Shore against suits brought by fishermen who were injured while on the boat. The captain did not carry any insurance idemnifying him in the event of accident to a crew member. 10. (

a) In July 1952, two substantially similar contracts were negotiated between the Atlantic Fishermen’s Union, representing the captains and crews engaged in fishing out of the port of New Bedford, and the Sea Food Producers Association of New Bedford, Inc. representing New Bedford boat owners. One of these instruments, denominated the Association Scallopers Agreement, was a contract between the Sea Food Producers Association and its members on the one hand and the union representing fishermen in New Bed-ford on the other.

The second instrument, denominated the Independent Scallopers Agreement, was a standard-form contract that was to be entered into between an owner of a vessel not a member of the Sea Food Producers Association and the union. (

b) The Sea Food Producers Association recognized the right of the union to bargain collectively. (

c) The vessel Lauren Fay was not a member of the Sea Food Producers Association in 1953 and 1954. In the early part of 1953, Mr. Kestenbaum, on behalf of Cape Shore, and the union, on behalf of the captain and crew of the Lauren Fay, executed the standard-form Independent Scallopers Agreement. 11.

The Independent Scallopers Agreement provided, in part, as follows: SCALLOPER AGREEMENT AgkeemeNt entered into this_day of_ 1952, between the Atlantic Fishermen’s Union (a labor organization), affiliated with the Seafarers International Union of North America, A.F. of L. (hereinafter called the “Union”), party of the first part, and_ (Hereinafter called the “Owner” and party of the second part, who signify_ acceptance by executing this agreement.) It being the purpose of the parties hereto that each in their relations to each other recognize the rights and responsibilities of Management and Labor and in so doing that the fishermen, in their efforts for improvements of their economic status shall not be inferior to other working men, the parties do reaffirm their desire for diminution of industrial strife, the advancement of labor management relations and the furtherance of efficiency and prosperity of the New Bedford fishing industry, and in embodiment of our good faith for purposes of collective bargaining it is agreed as follows:

ARTICLE 1. (

a) This Agreement shall apply to and cover all fishermen, including captains who are not owners, mates, deckhands, engineers and cooks, hereinafter identified and referred to as “employees”, now or hereafter hired on vessels owned or operated by the Owner. (

b) The Union is recognized as the sole and exclusive agency and other representative for each and. every employee covered by this Agreement (the captain and the crew), for the purpose of collective bargaming with respect to wages, hours of work and conditions of employment, and for the purpose of other mutual aid and protection. (

c) The Owner shall not make any individual agreement with the captain or the crew directly or indirectly in conflict with the provisions of this Agreement. (

d) The Owner, insofar as in his power, shall allow free access to the officials of the Union to the wharves, vessels, and offices of the Owner for the transaction of Union business. ARTIGUE 2. (

a) The owner further agrees that any member of the Union shall as a condition of continued employment be required to maintain his membership in the Union in good standing in accordance with the Constitution and By-Laws of the Union. (

b) The Owner also agrees that any present employee eligible for membership in the Union shall as a condition of employment become a member of the Union within thirty (30) days of the signing of this Agreement and that any new employee shall as a condition of employment become a member of the Union within thirty (30) days of his hiring on any boat in New Bedford of an Owner who has signed this or a similar Agreement. (

c) The Owner agrees not to discriminate against any fisherman for legitimate Union activities. (

d) The Owner agrees that only captains, mates, engineers, deckhands and cooks who are able and experienced fishermen shall be shipped on vessels owned or operated by the Owner. The ability and experience required shall consist, at least, of previous employment on vessels of American Registry engaged in fishing operations and shall, in part, be as follows:

(1) In the case of captains, the person must be a practical fisherman of not less than three (3) years’ experience; mates, engineers, cooks and deckhands shall have not less than two (2) years’ practical experience on fishing boats as a condition to being hired on any vessel covered by this agreement. (

e) The owner agrees that in the hiring of employees covered by this agreement, applicants who have previously been employed on vessels of any of the Owners signatory to this Agreement or of any other boat Owner signatory to a similar Agreement shall be preferred and the Union agrees that if it furnishes employees to vessels through the facilities of its shipping office it will recognize such preference and furnish employees to the vessels with due regard thereto. (

f) If experienced crew members are not available then inexperienced men may be shipped for one trip.

ARTICLE 3. (

a) The owner agrees that the captain shall (subject to the provisions of this Agreement) “hire and fire” the crew, including transients, but no member of the crew shall be fired except for cause shown (including the provisions of

Article 2), and unless notified by the captain when settling the trip or before noon of the following day. (

b) After the crew has discharged the trip, they shall perform other incidental duties which may be necessary to leave the boat as they found her ready for ice. If any crew member does not work for cause (as determined by the captain, except illness or injury) to discharge the trip, the captain shall hire a substitute at the man’s expense. (

c) Any transient member of the crew on any trip shall have the preference for any site the following trip, subject, however, to the provisions of

Article 2.

ARTICLE 4. (

a) The Owner and the Union agree that the crew shall have four (4) days’ rest ashore, during which time the men shall be deemed to be off duty, after the boat has docked provided the boat was docked before 5:00 P.M. For example, if a boat docks on Saturday before 5:00 P.M. it may sail on Wednesday and if it docks on Sunday before 5:00 P.M. it may sail on Thursday. If a boat docks on Monday before 5:00 P.M. it may sail on Friday. If the sailing day happens to be a Sunday or a 'holiday specified herein, the boat shall not sail until the following day.

(1) If a vessel returns with less than 350 gallons, the crew may sail after twenty-four (24) hours after discharge. (

b) Sailing time shall not be earlier than 9:00 A.M. and not later than 5:00 P.M. If a vessel returns within three (3) days after leaving port because of a breakdown the crew may sail on the same day if the repairs can be made before 5:00 P.M. on said day, excepting Sundays and holidays. (

c) The crew shall not be required to sail or discharge cargo or the captain to make any arrangement for the sale of cargo on Sunday, or the following holidays: New Year’s, Washington’s Birthday, Memorial Day, Fourth of July, Labor Day, Columbus Day, Armistice Day, Thanksgiving Day, Christmas Eve, and Christmas Day, but discharge of fish may be made on Christmas Eve. (

d) All trips shall be settled and the crew paid on the same day the trip is landed, if possible. (

e) If the Owner cannot pay the total wages on the same day he shall pay the major part of the wages on that day and the balance on the following day. (

f) The Union agrees not to hold its members in port beyond their normal sailing time as set forth in this

article for a Union meeting except for two (2) meetings per year and except for one Union meeting during each of the weeks which include July fourth or Christmas in any year, but in no event shall a crew delay sailing more than twenty-four hours after its normal sailing time for a union meeting.

ARTICLE 5. (

a) The hours of labor on 11-man boats shall be no more than six (6) hours on watch with no less than six (6) hours off between watches, excepting that boats carrying ten (10) men or less may work no more than six (6) hours on watch with three (3) hours off between watches and cooks shall not be required to work on deck before 6:00 A.M. nor after 6:00 P.M. (

b) The crew shall at no time be compelled to break a watch excepting in cases of extreme emergency. If the winch becomes broken while the drag is out it shall be the duty of all the crew to try and get the drag back. (

c) One member of the crew shall be permitted to act as steward on board the vessels to see that all Union men are in good standing before the vessel leaves port and to assure compliance with (

a) and (

b) of this

Article 5. But the Union agrees that after the boat has left port, the crew will not refuse to fish nor require the boat to return to port because of the steward’s neglect of duty. *****

ARTICLE 7. (

a) The Owner recognizes the need and duty to make reasonable provisions for the health and safety of the crew during the course of operations and will, as the situation from time to time requires, take all steps necessary to effectuate such duty. (

b) A fully equipped standard and suitable medicine chest shall be supplied and maintained by the Owner. Each vessel shall carry sufficient suitable life boats or dories with appropriate covers and other equipment, a method of fire control approved by the Coast Guard, 2 life rafts (large, or otherwise suitable oval-type, balsa wood), and ring life buoys with 15 fathoms of line and water light properly attached shall be on board each vessel. ^4 # ‡ %

ARTICLE 9. The Owner, as employer, shall furnish in writing to the Union or any person covered by

Article 1 of this Agreement, in such form that such employees or Union may retain said information as a permanent record, the following information as provided under or deemed requisite to effectuate or apply the Internal Revenue Code (Section 1403, as amended,

Chapter 9, Sub-chapter A, Federal Contributions Act, formerly known as Title VIII of the Social Security Act, or other related laws), to wit: 1. The name of the employer, employee, and his social security number. 2. The dates and length of employment. 3. The wages of the employee showing the lumper’s wage deduction if the crew member does not work and the food allowance. 4. The social security deduction. 5. The withholding income tax deduction. (Form W-2 shall be mailed to all employees on or before January 31st of the year following the period during which he was employed.) 6. The net amount received. •}*»{» H* H» sj*

ARTICLE 11. (

a) The Owner agrees that the wages to be paid to employees covered by this Agreement shall be computed in accordance with the following formula or Lay:

(1) The Owner will take an amount equal to the gross stock or proceeds of the trip and deduct therefrom the following amounts: I. y2 of 1% for the New Bedford Fishermen’s Fund as provided in paragraph (

d) of this Article. II. Watchman — when the scallops or groceries for the trip are on board. III. $15.00 per trip to be paid to the engineer. IV. $10.00 per trip to be paid to the mate. V. $10.00 per trip to be paid to the cook. YI. $1.50 per day, trip to trip, for the fathometer, and $1.50 per day, trip to trip, for installed radar, except when overhauling or hauled out. VII. Scallop bags. (2)The Owner will deduct from 65% of the remaining amount the following: I. Groceries. II. Coal and wood. III. Fuel oil. _ IV. Lubrication oil. V. Ice. VI. Icing. These items must be purchased at the lowest prices obtainable, and if possible at the wholesale or institutional level.

(3) The Owner will then divide the remainder of the 65% by the number of men (captain and crew) and the resulting amount shall be the wages of each man.

(4) In addition the Owner shall pay to the captain an amount equal to 10% of 35% of the amount obtained after the deductions in paragraph (a), sub-paragraph (1) above. (

b) In computing the wages of the captain and the crew in paragraph (

a) above no other deductions shall be made excepting those items definitely provided for in subparagraphs (1) and (2). (c). If the crew’s wages for a trip are less than $10. per man it shall be considered a “broker” and in such an event no “pers” may be paid. The Owner will pay on a broker no less than $1.00 per day to the captain and each member of the crew. This provision shall not apply when the crew’s earnings exceed the above mentioned guarantee, or unless the boat has been at sea at least five (5)days. The Union agrees that it will not request any change in the provisions of this

Section (

c) for a period of five (5) years. (

d) The Owner agrees to pay an amount equal to % of 1% of the gross stock or proceeds of each trip into a fund to be established and managed jointly by the Owners and the Union. Payments shall begin on the first trip after the signing of this Agreement.

This Fund shall be devoted to the payment of benefits to widows and dependents of fishermen who have contributed thereto, and the benefits from this Fund shall also be extended to other persons who have contributed to the Fund and to their widows and dependents as may be jointly agreed upon by an administrative committee composed of three representatives of the Owners and three representatives of the Atlantic Fishermen’s Union.

In the event that the Union or the Owner believes that a person within the aforesaid classes is meritoriously entitled to benefits and has been denied benefits by the administrative committee of the Union or the Owner may, pursuant to

Article 14 call for arbitration of the merits of the claim and the award of the arbitrators shall be binding upon the Fund. This Fund shall be financed by a deduction of y2 of 1% from the gross stock of each trip until the Fund has reached a level of $75,000. at which time such payments or deductions will cease until the Fund is decreased to the level of $50,000. at which time payments will resume. (

e) The settlement sheets and itemized bills as herein provided shall be placed in the forecastle for the duration of the trip. A copy of all settlement sheets with weigh-out sheet shall be sent to the Union office each trip by the Owner, immediately after settling the trip. All bills for food, ice or fuel must be fully itemized so as to include the price per gallon, per ton or other units of measurement. Under no condition shall charges under the word “miscellaNeotjs” be allowed as deductible items on the settlement sheets. (

f) The crew shall have the right to refuse to use food, ice and oil for the trip from any store if the same quality and quantity of such supplies may be purchased elsewhere cheaper. (

g) Oil used while the vessel is being overhauled and oil not actually used in the course of the trip shall not be a deductible item in paragraph (

a) of this Article. Oil used in excess of the normal amount generally consumed on a vessel for the number of hours steamed shall not be deductible in paragraph (

a) and the average of the oil normally used by the engine when in good condition shall be the basis for determining the excess oil consumed on any trip. (

h) Maintenance and cure shall be no less than on a $3.00 per diem basis. Wages, maintenance and cure are not to be withheld in any case merely because the claimant has filed suit, or is taking steps to file suit, or has submitted claim for damages. Whenever wages or maintenance are due under the “General Maritime Law” such shall be paid promptly, currently and in full. No settlements shall be made or attempted in the payment of such wages and maintenance for an amomit that is clearly less than that to which the claimant is entitled under the “General Maritime Law.” (

i) The crew shall not be required to splice any wires excepting the main wire while fishing, and the crew shall not be required to mark and splice new wires unless paid, but marks shall be renewed in old wire, except at the dock. Any splicing shall be no less than $1.00 per splice on wire. (

j) No deductions shall be made while the vessel is in port for painting or repairs or while otherwise not in actual operation, except such deductions as are chargeable to the next trip. PAYMENT EOR WORK DONE IN PoET:

(1) No work shall be done in port without pay except that customarily done. Employees shall be paid $1.25 per hour for the work of constructing new style gear or changeover, splicing cable, installing or removing whole new cables or wires, or other equipment, and for doing any work required for the removing of the winch when it requires repairing ashore.

In fitting out vessels, exclusive of putting on grub and stores, $1.25 per hour shall be paid with a minimum of four (4) hours’ pay if any work is done in the forenoon and a like amount of minimum pay shall be paid for work done in the afternoon, provided the man reports at the time designated. When a boat goes into a port temporarily out of a storm with her gear torn up the crew may do the work on the gear that they would ordinarily do on the fishing grounds without the pay provided for in this paragraph.

The crew will work on gear coming home if weather is not too bad, but if a boat comes into port after a trip and the weather has been too bad to work on the gear coming home the crew at the discretion of the captain shall work to fix the gear in port that they would ordinarily do coming home without the pay provided for in this paragraph, or the crew, including the new men shipped that trip, shall fix the gear on the way out.

(2) Overtime at the rate of time and one-half shall be paid for all work over eight (8) hours in any one day and after 12:00 o’clock noon on Saturday and double time shall be paid for all work performed on Sundays and holidays.

(3) In addition to his regular duties, it shall be the duty of the engineer to change spray nozzles and change lube oil when necessary; change fuel and lube filters and strainers; pack pumps; clean, fill and maintain batteries and other customary incidental work necessary to the proper operation of the vessel; and set up clutches except at the dock, and keep the engine room reasonably clean without compensation except when the boat is hauled out for repairs.

(4) If an engineer is hired for other work, after performance of his ordinary duties (the keeping of all necessary equipment and engine in operation until fish is discharged) the rate of pay shall be at least $1.50 per hour, with time and one-half for time after eight (8) hours in any one day and after 12:00 o’clock noon on Saturdays, and double time on Sundays and holidays.

(5) If, during the course of discharge of fish, an engineer is required to do engine work beyond his ordinary duties, he shall receive at least $1.50 per hour or have his lumper paid for by the Owner (this not being a deductible item in paragraph (

a) of this Article). In either case the engineer shall receive overtime at the rate of time and one-half after 5:00 P.M. If there is occasion to hire engineers for overhaul work the rate of pay shall be at least $1.50 per hour. Overtime at the rate of time and one-half shall be paid for all work over eight (8) hours in any one day and after 12:00 o’clock noon on Saturdays and double time shall be paid for all such work performed on Sundays and holidays.

(6) In the event a boat is unable to sail due to mechanical trouble requiring up to two days’ work, there shall be no stand-by pay. In the event that the crew is asked to report and is not notified to the contrary prior to reporting on the third day and the boat is not ready, each man reporting at the dock shall be reimbursed at the rate of $1.25 per hour per man with a maximum of four hours’ pay for any one day. Should the Owner then not know when the boat will be ready, he shall so inform the captain, who will, in turn, inform the crew so they may get sites elsewhere.

(1) Any Owner paying better wages to any particular nerson than set forth in this Agreement may continue to do so.

ARTICLE 12. (

a) The Owner agrees that the captain shall sell the catch and that the captain and Owner shall use their best efforts to prevent any manipulation or fraudulent practice (including but not limited to accepting less than the the price on the sales slip or short weighing or false weighing) which will decrease the wages of the crew. (

b) In paragraph (a), sub-paragraph (1) of

Article 11, the gross stock or proceeds shall be figured on the basis of actual sales price except that where the Owner or captain acts in violation of this

Article 12 the gross proceeds shall be figured on the basis of the fair market value. The captain shall be present during the course of the discharge of the fish and exercise due care to protect the wages of the crew. All fish landed in New Bed-ford * * * shall be sold only through the selling rooms. * * * Any dispute as to change of location of the selling room in New Bedford shall be mutually agreed upon by the Union and the Owners and upon failure to agree the matter shall be subject to arbitration hereunder. (

c) The mate, purser, or both, of the vessel shall at all times weigh and purse out the trip of fish and shall receive a voucher stating the weight of the trip. If the mate or purser is not present, the captain shall appoint a member of the crew so to perform these duties. No fish nor any seafood shall be discharged from any vessels until evidence of sale is submitted and the original sales slips covering the said sale are given to the captain or mate. It shall be the duty of the captain to see that these rules are carried out. r]» eji iji

ARTICLE 14. (

a) During the life of this Agreement there shall be no strike or cessation of work or lockout as to matters specifically provided for or regulated by this agreement, but nothing in this

Article shall prevent a strike or cessation of work on other matters, except that this right to strike or cease work shall not be used to alter or amend the terms of this agreement. This

Article shall not affect or be deemed detrimentally to affect or limit the right of the Union to reopen this Agreement under

Article 15(c). The reservation of the right to strike and cease work as specifically set forth in this

Article 14(

a) and the right of the Union to reopen this Agreement under

Article 15(

c) shall not be matters subject to arbitration. (

b) A strike or cessation of work not authorized or called by the Union shall be deemed an unauthorized strike and the Union shall endeavor forthwith and in good faith to secure a return to work so that the dispute may be settled peaceably in accordance with the provisions for arbitration hereinafter set forth and there shall be no liability on the part of the Union for an unauthorized strike. & ‡ ‡ $

ARTICLE 15. (

a) This Agreement shall continue for the period from the date of signing to_, and thereafter from year to year, provided, however, that this Agreement may be terminated on the_day of -, or on the_ of any year thereafter by either party giving to the other by registered mail, not less than sixty days’ prior written notice to that effect. (

b) The Owner and the Union shall meet to negotiate within fourteen (14) days after receipt of notice. If negotiations are not completed on the first day of July of any such year, the provisions of this Agreement shall continue in full force and effect for an additional thirty (30) days after the termination date, and may be thereafter continued for an additional period or periods by mutual assent. (

c) Notwithstanding any other provision of this Agreement, the Union or Owner may reopen this Agreement if any verdict, judgment or decision in the case of United States vs. Atlantic Fishermen’s Union, et al now pending in the United States District Court for the District of Massachusetts casts any doubt on the validity or applicability of this Agreement or any provision thereof, or upon the present status or rights or privileges of the Union, its members, or of the Owner.

(1) The Union or Owner may reopen as provided in this paragraph (

c) by giving written notice by registered mail to the other and they shall meet to negotiate immediately upon receipt of the notice to reopen. If the Agreement is thus reopened, it shall, in the interim, continue until modified by mutual consent, except that if the parties cannot agree, this Agreement shall expiré sixty (60) days from the date of the written notice provided in this subparagraph (1).

(2) The Union or Owner may at any time prior to the expiration date as provided in subparagraph (1) withdraw its notice of reopening.

ARTICLE 16. Vessels presently owned or operated by the Owner and immediately subject to the provisions of this Agreement are identified hereinbelow adjoining the Owner’s execution of this Agreement. * * * * * 12. The background events leading to the Independent Scallopers Agreement were as follows: (

a) In April 1946, the ’Sea Food Producers Association of New Bedford and the Atlantic Fishermen’s Union entered into a written contract. This contract expired in October 1947 and was not renewed. (

b) In or about October 1951, the association and the union started negotiations for a new written contract, which continued until July 1952. One of the union’s goals in these negotiations was to extend to New Bedford, with appropriate modifications for scalloping, the provisions of the so-called Boston trawler contract which had been executed in 1946 between the union and boat owners. Provisions of that contract, together with those of the 1946 New Bedford contract, were used by the parties as a basis for negotiating and drafting the 1952 Scallopers Agreements. (

c) During the course of the negotiations, in June 1952 the New Bedford fishermen went out on strike for purpose of obtaining a written contract. The strike was settled by the signing in July 1952 of the Independent and Association Scallopers Agreements. Many of the provisions of these agreements were based on provisions of the 1946 Boston trawler contract. (

d) Another event which had an impact on the negotiations was an indictment returned on November 15, 1951, by a Federal Grand Jury in the United States District Court for the District of Massachusetts against the Atlantic Fishermen’s Union, the union’s New Bedford Branch, the Sea Food Producers Association of New Bedford and five union officials. Count 1 of the indictment charged these defendants with having engaged in a conspiracy to restrain unreasonably the production of fish (including scallops) by boats sailing out of the port of New Bedford and the sale of such fish to dealers in the port of New Bedford, in violation of

section 1 of the Sherman Act. Count 2 charged the defendants with having monopolized trade and commerce in the production and sale of fish in New Bedford, in violation of

section 2 of the Sherman Act. Paragraph 13 of the indictment stated as follows: The fishermen who are members of the AFU are not employees, workers, or laborers, but are independent businessmen engaged in fishing for their own account and profit. They do not receive a salary or wages for their work. Each fisherman who is a member of the crew risks making a profit or loss, 'according to the success or failure of each fishing trip. Further, the fishermen control the catching and sale of the fish.

The boat owner has no control with respect to the areas in which fishing will be conducted, the length of time the boat will engage in fishing, or the amount of fish which will be caught on a particular fishing trip. When the boat returns to port each boatload of fish is sold separately by the boat captain at a fish auction controlled by the AFU, New Bedford. Prior to the establishment of this auction, in or about 1243, the captain of the boat could sell the catch of the boat to whomever he pleased, including the owner of the vessel. (

e) In view of the indictment, and particularly paragraph 13 thereof, one of the major issues in the negotiations was a union demand that the proposed written contract specifically refer to fishermen as “employees”. The union was of the view that inclusion of this terminology would give the fishermen protection in the antitrust case. Another reason for the union demand was the fact that certain boat owners had filed claims for refund of social security taxes alleging that captains and crews of fishing vessels were not “employees” of the boat owners.

In this connection, the union successfully resisted a demand by the association to have included in the contract a provision allowing the owners to bring appropriate proceedings to resolve the issue of whether they were subject to the Federal Unemployment Tax Act and other statutes dealing with employment taxes. (

f) The first two sentences of paragraph 13 of the indictment alleging that fishermen were “independent businessmen” were later ordered stricken by the court. This order was issued without objection on defendants’ motion to strike as surplusage. (

g) There is no evidence in the record that Mr. Kesten-baum participated in or was aware of these negotiations when he signed the Independent Scallopers Agreement (hereafter referred to as the “union contract”) in 1953. 13. Construction of the Lauren Fay was completed in the latter part of 1952. Theodore Pedersen was hired as captain by Mr. Kestenbaum and served in that capacity from its first trip in February 1953 to January 1954 when he quit. Louis Doucette was the next captain of the Lauren Fay from January 1954 until October 1954 when he was fired by Mr. Kestenbaum. Mr.

Doucette had applied for the job in response to an advertisement in a New Bedford newspaper and was interviewed and hired by Mr. Kestenbaum. 14. All captains and crew members of the Lauren Fay were covered by the union contract signed by Mr. Kesten-baum. 15. (

a) During 1953 and 1954, the captain of the Lauren Fay always had the right to, and did in fact, hire and fire the members of the crew. This was in accordance with the customs and practice in the industry and with

Article 3(

a) of the union contract. In addition, the members of the crew were under the direct supervision and control of the captain. (b)Other than the captain, Mr. Kestenbaum did not hire and had no dealings with members of the crew. 16. (

a) The captains and other crew members were not hired for any specific period of time; they could quit or be fired at the end of any trip. (

b) There was no provision for vacation or holiday pay for the captain or other members of the crew. (

c) Article 3(

a) of the union contract provided that “no member of the crew shall be fired (by the captain) except for cause. * * *” However, this provision was not adhered to in actual practice. (

d) Members of the crew were hired at times for a “steady site”. This meant that if the crew member did his job satisfactorily, he could remain as a member of the crew as long as the captain remained with the particular vessel. (

e) It is customary for scallop-fishing boats to average 25 trips a year to sea. (

f) In 1953 the Lauren Fay made 25 trips to sea. Three persons, the captain, the engineer and a fisherman, were members of its crew on all 25 trips. Also in 1953, one person was a member of the crew on the first 21 trips; one was a member of the crew on 19 trips; one on 18; one on 17; two on 16; and one on 10 trips. All these trips were consecutive. One fisherman served on 11 consecutive trips and after a lapse, was a crew member on 2 additional trips. Two persons served as crew members on 2 trips; one on 5 trips; four on 4 trips; six on 3 trips; seven on 2 trips; and nine on 1 trip each. (

g) In 1954, the Lauren Fay likewise made 25 trips to sea, In that year, two persons served as crew members on 17 trips; one on 11 trips; one on 10 trips; two on 9 trips; two on 8 trips; four on 7 trips; six on 6 trips; five on 5 trips; three on 4 trips; nine on 3 trips; seven on 2 trips; and twenty on 1 trip. (

h) Mr. Kestenbaum hired a captain not for a specific period of time but with the understanding that if he did a job that was satisfactory to Mr. Kestenbaum, he would continue on. Mr. Kestenbaum made every effort to keep the same captain on the Lauren Fay for a substantial period of time if he did a good job. 17. No special license or papers were required to become a captain on the Lauren Fay during the years 1953 and 1954; anyone in the fishing business was eligible for that job. In selecting a captain for the boat, Mr. Kestenbaum tried to obtain as qualified a fisherman as possible.

Under the union contract, the captain had to be a practical fisherman of not less than three years’ experience, while the mate, engineer, cook, and other members of the crew had to have at least two years of practical experience on a fishing boat. 18. When the captain was selected, he went to the customs house and signed on as captain of the vessel. Once that was done, the captain, in addition to being master of the vessel, became a member of the fishing crew and performed the duties of a fisherman, including catching of scallops and loading and unloading at the dock.

He received the same share as the other fishermen, and also received 10% of the boat owner’s share. 19. In selecting members of the crew, the captain tried to obtain trained fishermen since the catch is dependent to large extent on their skill, and an unskilled fisherman might slow production somewhat. It takes 5 or 6 trips to become a good fisherman. The captain, mate, engineer and cook were all fishermen and during the trip performed fishing duties, in addition to their other work. 20. During 1953 and 1954, Mr.

Kestenbaum did not instruct the captains of the Lauren Fay to hire any specific crew members, but he did on one occasion instruct Captain Pedersen to hire as members of the crew men who would work longer hours than the union rules called for. 21. (

a) Under

Article 4 of the union contract, the crew had four days’ rest ashore between fishing trips. If the boat docked before 5:00 P.M. that day counted as one of the four. This contract provision was observed on the Lauren Fay. (

b) By virtue of the union contract, and in accordance with tradition and custom, the Lauren Fay, barring bad weather or the need for laying up for repairs, left port the day after the four-day rest period ashore ended. (

c) Under the union contract, the Lauren Fay could not sail before 9:00 A.M. or after 5:00 P.M. Subject to this contract, the captain made the decisi

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