Monday, March 1, 2010


NYLJ 5-31-07


4. In Dziennik v. Sealift, 05-4659, it would appear that EDNY Justice Irrizarry found the defense was all at sea—like, did they know the first thing about the issues, or were they floundering from the moment their case hit the water?

The lead attorney for the plaintiff’s certainly knew his way around the dockside of things, having worked for years to limit the ability of foreign swabs to scab aboard US flag vessels. This experience in Maritime Law is almost enough to qualify him as an old salt, alone. But the way he tacks over the defense argument that his previous representation of American worker’s interests would present an “insurmountable ideological conflict” was purely naval maneuvering.

“You don’t really see that in the admiralty bar, that kind of denigration,” Mellusi mellowed. And as for the Marine Counselor’s use of a legal argument for a separate case as evidence of his lack of qualification—as “word for word shouldn’t be allowed”—well, the Judge wasn’t buying that either. As if the defense had never heard of “precedent”, or perhaps they somehow thought they’d stumbled into a copyright infringement case, Irrizarry summed up both postions as “without merit and entirely irrelevant,” respectively.

Whiter res, though? Much more sounding in the immigration debate than the sea. Consider the plight of the plaintiff’s: 209 Polish and Filipino seamen disputing lower wages dating back to 1999. the whole thing is rendered by one group of foreign workers vs. ship owners and operators Sealift, Fortune Maritime, Sagamore Shipping and Victory Maritime. The latter failed to provide “shipping articles” to the former (in violation of federal law), failed to pay overtime and represented these seasoned sailors as students, to circumvent U.S. laws. In the entire action, it was the most controversial part, for the owners, that these non-Americans could seek certification as a Class, in order to inaugurate a civil suit. As it was couched in terms of “’U.S.’ vs. Them” by the defense, they also tried to frame the plaintiff’s counsel in a traitorous light (as if they would never have opposed him in any other suit for locals). So it was their further stretch of the imagination to claim that the plaintiff’s missed the boat by not meeting tow of the four criteria of the FRCP Rule 23(a), namely: 1) they were not typical of their class; and 2) that the three Poles were not really adequate to represent those interests…which would sound like racism, if it weren’t couched in such high-falutin’ language.

Irrizarry took those to task, along with the “predominance” (read: # of incidents, like a pattern of abuse) and “superiority” requirements in FRCP Rule 23(b)(3). “The putatitve class members rely on common legal theories, namely, whether plaintiffs have been paid full wages and overtime and, if not, whether failure to do so entitles them to federal statutory penalties. Moreover, their claims arise from a common nucleus of fact, that the plaintiffs (as a group) worked for the defendants (collectively, individually) vessels from 1999, proves the defendants engaged in a uniform practice or scheme to deprive their employees of wages and overtime.

“The court finds that a class action is superior to other available methods for adjudication of the controversy at issue herein,” Iz the final word in certification.

Or the defense is all wet, is another.

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