FERN M. SMITH, United States District Judge.

ORDER DENYING MOTION TO STRIKE AND GRANTING MOTION TO CONSIDER OPPOSITION PAPERS; ORDER GRANTING MOTION TO DISMISS IN PART

ISSUES

These motions require the Court to decide (1) whether plaintiff's opposition papers should be stricken because they were filed late due to an inadvertent error by plaintiff's counsel; (2) whether plaintiff's complaint should be dismissed, because (a) plaintiff, as the master of a vessel, fails to state a claim under 46 U.S.C. § 10313; (b) plaintiff fails to state a claim for breach of a collective bargaining agreement since he fails to allege either an exhaustion of contractual remedies or a breach by his union of its duty of fair representation; and (c) plaintiff fails to state an in rem action against the ship because the vessel is no longer in existence; and (3) whether plaintiff's prayer for attorney's fees should be stricken from the complaint.

For the reasons discussed below, the Court holds: (1) defendant's motion to strike plaintiff's untimely opposition is DENIED; (2)(a) plaintiff's claim under 46 U.S.C. § 10313 is DISMISSED because this code section does not provide a cause of action for the master of a vessel; (b) plaintiff's claim for breach of a collective bargaining agreement is DISMISSED WITH LEAVE TO AMEND, allowing plaintiff to allege either an exhaustion of contractual remedies or a breach by his union of its duty of fair representation. The Court refrains from deciding the following motions because they are premature: (2)(c) defendant's motion to dismiss plaintiff's in rem claim placing a lien on the vessel; and (3) defendant's motion to strike plaintiff's request for attorneys fees.

INTRODUCTION

These matters are before the Court on the following motions: (1)(a) defendant's motion to strike plaintiff's opposition and (b) plaintiff's motion for consideration of its opposition; (2) defendant's motion to dismiss plaintiff's complaint; and (3) defendant's motion to strike plaintiff's request for attorney's fees.

BACKGROUND

I. Plaintiff's Factual Allegations and Claims

Plaintiff Robert R. Rothmann ("Rothmann") was employed as the master of the vessel S/S President Taft ("the vessel") for approximately 27 months from April, 1990 through July, 1992. Complaint, P 6. During this time, the vessel was owned by defendant American President Lines ("APL"). Complaint, P 6. Rothmann's wages as master of the vessel were established by a collective bargaining agreement between the International Organization of Masters, Mates & Pilots ("the union") and APL ("the collective bargaining agreement"). Complaint, P 6. Throughout Rothmann's employment, APL paid him the "A-2" base wage pursuant to the collective bargaining agreement. Complaint, P 6. Rothmann claims, however, that he should have been compensated under the "A-3" base wage, which would have entitled him to additional wages and benefits equal to approximately $ 1,500 per month. Complaint, P 9.

Based on these allegations, Rothmann brings suit against APL pursuant to 46 U.S.C. § 10313 for the wages and benefits allegedly due, and for penalty wages equal to two days' wages for each day payment is delayed. In the alternative to recovery under § 10313, Rothmann brings suit for damages alleging APL breached the collective bargaining agreement. In his complaint, Rothmann also cites 46 U.S.C. § 11112 which allows masters to place a lien against the vessel for the payment of wages and benefits. Rothmann prays for $ 40,000 in damages, $ 13,000 in penalty wages, and attorneys fees. Complaint, PP 11-13.

II. Plaintiff's Untimely Opposition Papers

APL filed its motion to dismiss on September 12, 1994. Rothmann filed his opposition to the motion 25 days later, on October 7, 1994. Rothmann's counsel, George W. Nowell ("Nowell"), declares that this opposition was filed late due to an inadvertent mistake. Nowell explains that although he was aware of the Court's standing order No. 2 which establishes an unusual briefing schedule for motions, he inadvertently calendared the opposition due date according to Local Rule 220-3, the rule which sets the default briefing schedule in the Northern District.

DISCUSSION

I. Defendant's Motion to Strike and Plaintiff's Motion for the Court to Consider Plaintiff's Untimely Papers

Rule 6(b)(2) of the Federal Rules of Civil Procedure gives the court the discretion, "for cause shown," to consider untimely papers if the failure to file the papers in a timely manner was a result of "excusable neglect." Rothmann's opposition to APL's motion to dismiss was filed late because Nowell, Rothmann's counsel, inadvertently calendared the filing date for fourteen days before the hearing, as required by Local Rule 220-3 of the Northern District, instead of fourteen days after the filing of the motion as required by this Court's Standing Order No. 2. Nowell served and filed the opposition in compliance with the Northern District's rule. Because the briefing schedules provided in the Northern District local rules and the Court's Standing Orders both have fourteen day standards, the Court finds that Nowell's mistake in confusing these two rules when he calendared the due date of the opposition constitutes "excusable neglect" within the meaning of Fed. R. Civ. P. Rule 6(b). Accordingly, APL's motion to strike Rothmann's opposition is DENIED, and Rothmann's motion for the Court to consider this opposition is GRANTED.

II. Defendant's Motion to Dismiss Plaintiff's Complaint

A. The Legal Standard

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). Dismissal of an action pursuant to Rule 12(b)(6) is appropriate only where it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957)). In reviewing the motion, the Court must assume all factual allegations to be true and must construe them in the light most favorable to the nonmoving party. North Star, 720 F.2d at 580.

B. Plaintiff Fails to State a Claim Pursuant to 46 U.S.C. § 10313

Rothmann brings suit against APL, pursuant to 46 U.S.C. section 10313, for wages and benefits due and for penalty wages. Section 10313, known as the Seaman's Wage Act, provides recovery for wages owed plus penalties for delinquent payment. See generally, Su v. M/V Southern Aster, 978 F.2d 462, 467-68 (9th Cir. 1992), cert. denied, 508 U.S. 906, 113 S. Ct. 2332, 124 L. Ed. 2d 244, 113 S. Ct. 2331 (1993). Section 10313 provides, in relevant part:

§ 10313. Wages

. . .

(f) At the end of a voyage, the master shall pay each seaman the balance of wages due the seaman within the 24 hours after cargo has been discharged or within 4 days after the seaman is discharged, whichever is earlier . . .

(g) When payment is not made as provided under subsection (f) of this section without sufficient cause, the master or owner shall pay to the seaman 2 days' wages for each day payment is delayed.

Section 10313, subsections (g) and (f) were enacted to replace in part an earlier version of the Seaman's Wage Act, 46 U.S.C. section 596. 46 U.S.C.A. App. §§ 591-608 (West 1994). In August, 1983, Congress repealed section 596 and enacted section 10313 as a part of a revision of Title 46 of the United States Code. H.R. Rep. No. 338, 98th Cong., 1st Sess. 1 (1983). ^fn1

[*8]1. Congress Intended Section 10313 to Apply Only to Seamen and Not to Masters

Rothmann argues that his status as master does not prevent him from bringing suit under section 10313. He asserts that it was Congress' intent to allow masters to recover under section 10313. Rothmann contends that this is demonstrated by Congress' enactment in 1986 of 46 U.S.C. section 11112, which provides in its entirety:

§ 11112. Master's lien on wages

The master of a documented vessel has the same lien against the vessel for the master's wages and the same priority as any other seaman serving on the vessel.

The Court disagrees.

Congress enacted section 11112 in 1986 in order to "restore[] a provision of law regarding a vessel master's lien [ 46 U.S.C. § 606] that was inadvertently omitted by the revision of title 46 . . . [in 1983]." S. Rep. No. 284, 99th Cong., 1st Sess. 17 (1986). Section 606 was enacted in 1968, after section 596 was in effect, to give masters as well as seamen a lien on the vessel for unpaid wages. S. Rep. No. 1079, 90th Cong., 2d Sess. 1-3 (1968). The fact that section 606 provided a lien right to both seamen and masters did not, however, persuade courts that Congress intended to extend section 596 to also include masters. See e.g., Ramsey v. M/V Modock, 372 F. Supp. 1131, 1133 (E.D. La. 1974).

In Ramsey, the court held that the inclusion of both seamen and masters in section 606 "seems principally to reflect [Congress'] concern for the position of the master's wage claim in bankruptcy rather than a broad desire to 'equalize' masters' and seamen's wage remedies;" therefore, the court was not convinced that it was Congress' intent to extend section 596 to include masters. Id. There is no reason to believe that Congress' intent in enacting section 11112 was anything more than to correct its mistake in failing to include section 606 in its 1983 revisions. The Court is, therefore, no more convinced than the court was in Ramsey that Congress intended to extend the Seaman's Wage Act to masters.

APL argues that Congress intended section 10313 to apply only to "seamen" and not to "masters". APL bases its argument on case law interpreting the earlier version of the Seaman's Wage Act, 46 U.S.C. section 596. A long line of cases, including one in the Ninth Circuit, held that Congress intended section 596 to provide a remedy only for seamen, and not for masters. See e.g., Johnson v. Offshore Tankers Service, Inc., 789 F.2d 1417, 1419-20 (9th Cir. 1986); Markakis v. SS Volendam, 475 F. Supp. 29, 31 (S.D.N.Y. 1979); Ramsey v. M/V Modock, 372 F. Supp. 1131, 1133 (E.D. La 1974), aff'd without op., 546 F.2d 908 (5th Cir. 1977). APL cites George v. Kramo Ltd., 796 F. Supp. 1541, 1547-48 (E.D. La. 1992), to support its assertion that the case law prohibiting masters from bringing actions under section 596 should extend to section 10313. The George court held that this case law does apply to section 10313, thus prohibiting the master of a vessel from recovering thereunder. Id. The George court emphasized,

The Statute's [section 10313] words must be given their plain meaning and precedent and Congress' intent must be deferred to.

George, 796 F. Supp. at 1548.

In finding that it was Congress' intent that section 10313 apply only to seamen, and not to masters, the court found it compelling that "Congress altered Title 46 in 1983 and it did not choose to change the language of the Penalty Wage Statute, nor did it extend the Statute to masters." Id. The George court also referred to rationale relied on by cases prohibiting masters from recovering under section 596. The court noted that

maritime law by inevitable tradition has made the ordinary seaman a member of a favored class. He is a 'ward of the admiralty,' often ignorant and helpless, and so in need of protection against himself as well as others. The master, on the other hand, is able in most instances to drive a bargain for himself, and then when the bargain is made, to stand upon his rights. Discrimination may thus be rational in respect of remedies for wages.

Id. (citations omitted); see also, Johnson, 789 F.2d 1417, 1419 (9th Cir. 1986) (referring to this rationale in denying recovery under section 596). Finally, the George court noted that Congress' intent is also reflected by the fact that the definitional section existing at the time section 596 was in effect, 46 U.S.C. § 713, defined "seaman" and "master" separately, as does the definitional section in effect today, 46 U.S.C. § 10101. George, 796 F. Supp. at 1548. The separate definitions suggested to the George court that both terms would have been used in sections 596 and 10313 if the sections were intended to apply to masters as well as seamen. Id.

The Court finds the reasoning in George persuasive, and holds that it was Congress' intent that section 10313 provide a remedy only to seamen, and not to masters.

2. Section 10313 Does Not Provide a Remedy to Masters For Either Penalty Wages or Earned Wages

Rothmann next contends that even if a master is prevented from bringing an action for penalty wages under section 10313, a master is still permitted to bring an action for earned wages thereunder. In support of this contention, Rothmann argues that the cases upon which APL relies address only the issue of whether penalty wages are recoverable by a master. Rothmann argues that APL does not cite any authority which prevents Rothmann from bringing a claim for earned wages which APL wrongfully refuses to pay. The Court disagrees. While most of the cases interpreting section 596 and 10313 specifically address the issue of whether a master can recover penalty wages, at least one case bars a master from bringing any suit under section 10313, including a suit for earned wages. In Johnson, 789 F.2d 1417, 1418 (9th Cir. 1986), the plaintiff master filed an action for both earned wages and penalty wages under 46 U.S.C. section 596. The Ninth Circuit affirmed the district court's order granting summary judgment against the master for penalty wages as well as for earned wages, and held that "a master is not entitled to bring an action as a 'seaman' under section 596." Id. ^fn2 Consistent with the reasoning above, Johnson's holding under section 596 extends to section 10313.

The Court concludes that section 10313 provides a remedy for earned wages and penalty wages only to seamen, and not to masters; therefore, the Court holds that Rothmann's claims for both earned wages and penalty wages under section 10313 are DISMISSED.

C. Plaintiff's Claim for Breach the Collective Bargaining Agreement

Rothmann's alternative claim for unpaid wages is that he was improperly paid in breach of the collective bargaining agreement. Complaint, P 9. As such, this action constitutes a claim under section 301 of the Labor Management Relations Act ("LMRA"), which states:

Suits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any district court having jurisdiction of the parties . . .

29 U.S.C. § 185(a).

Before an employee can bring a claim against his employer under section 301 of the LMRA for breach of a collective bargaining agreement, the employee must first exhaust contractual remedies provided in the collective bargaining agreement. Vaca v. Sipes, 386 U.S. 171, 184, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). As stated by the Ninth Circuit in Carr v. Pacific Maritime Ass'n, 904 F.2d 1313, 1317 (9th Cir. 1990), cert. denied, 498 U.S. 1084, 111 S. Ct. 957, 112 L. Ed. 2d 1045 (1991):

As a general rule, members of a collective bargaining unit must first exhaust contractual grievance procedures before bringing an action for breach of the collective bargaining agreement. . . . Failure to utilize the grievance procedures, or to invoke them in a timely manner, bars grievants from pursuing remedies in court. . . .

(Citations omitted.) An exception exists to this general rule. An employee can obtain judicial review of a claim for breach of a collective bargaining agreement despite a failure to exhaust contractual remedies if he can show that the union breached its duty of fair representation. Vaca, 386 U.S. at 185; Jackson v. Southern California Gas Co., 881 F.2d 638, 646 (9th Cir. 1989).

APL argues that Rothmann has failed to allege these necessary prerequisites for bringing a claim under section 301, and that Rothmann's claim should therefore be dismissed. Rothmann argues that he should be able to maintain his claim because, under Cady v. Twin Rivers Towing Co., 486 F.2d 1335 (3d Cir. 1973), a distinction exists between claims for maritime wages and non-wage claims, and that only claims for non-wages are barred by section 301. Rothmann misinterprets Cady. The court in Cady declared:

. . .the presence of a grievance procedure clause of a collective bargaining agreement did not bar a seaman, at his option, from pursuing a statutory remedy for collecting wages due and owing pursuant to provisions of 46 U.S.C. § 596 [currently § 10313].

Cady, 486 F.2d at 1338. The court in Cady did not hold that a seaman may bring an action for damages pursuant to section 301 for breach of the collective bargaining agreement. Cady stated that even though a seaman's wages might be covered by a collective bargaining agreement with a grievance procedure, he is not barred from bringing a statutory remedy. Rothmann filed a statutory claim under section 10313; this statutory claim is dismissed for other reasons. See supra.

Because Rothmann did not allege either that he either exhausted the contractual remedies provided by the collective bargaining agreement or that the union breached its duty of fair representation, Rothmann's claim under section 301 must be dismissed. See, Seid v. Pacific Bell, Inc., 635 F. Supp. 906, 909 (S.D. Cal. 1985) (action under section 301 dismissed for failure to allege either of these necessary prerequisites).

Rothmann requests that this claim be dismissed with leave to amend, giving him the opportunity to correct his insufficient allegations. The Federal Rules provide that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). The Court, therefore, grants Rothmann leave to amend this claim so that he may allege the required prerequisites for a section 301 claim.

D. Plaintiff's Lien for Wages Pursuant to § 11112

In his complaint, Rothmann makes reference to 46 U.S.C. § 11112, which provides:

§ 11112. Master's lien for wages

The master of a documented vessel has the same lien against the vessel for the master's wages and the same priority as any other seaman serving on the vessel.

In essence, Rothmann names the vessel, the S/S President Taft, as the target of an in rem proceeding.

APL argues that Rothmann cannot place a lien on the vessel to maintain an in rem proceeding against it because APL sold the vessel, and it has been destroyed. See Walsh v. Tadlock, 104 F.2d 131, 132 (9th Cir. 1939) ("With the total destruction of the vessel the lien thereon were of necessity extinguished."). Rothmann requests the Court to allow him time for discovery before the Court converts APL's motion to dismiss into one for summary judgment by considering APL's extrinsic evidence that the vessel was scrapped. Rothmann asserts that even if the vessel has been sold and destroyed, he might still be entitled to a lien for the following reasons: (1) maritime liens attach not only to the vessel, but also to the freights of the voyage for which Rothmann was the master (citing Schirmer Stevedoring Co. v. Seaboard Stevedoring Co., 306 F.2d 188, 192, 1962 AMC 2071 (9th Cir. 1962)); (2) a lien will hold on any part of the vessel which remains or can be reached after the vessel is destroyed (citing 55 C.J.S., Maritime Liens, Sec. 72); and (3) where a vessel is sold out of necessity, prior liens may be transferred by the sale to the proceeds of the sale (citing 55 C.J.S., Maritime Liens, Sec. 72).

The issue of whether Rothmann is entitled to maintain its lien is premature. Section 11112 entitles Rothmann to place a lien for wages, but there is as yet no determination on the merits of whether Rothmann is due any wages. Furthermore, Congress enacted section 11112 to protect the master's wage claim in bankruptcy proceedings. Ramsey, 372 F. Supp. at 1133. Even if Rothmann is entitled to some back wages, a lien under section 11112 may only be appropriate if there is a legitimate concern that APL can not pay the wages.

III. Defendant's Motion to Strike Plaintiff's Request for Attorney's Fees

As part of Rothmann's damages under the complaint, Rothmann seeks to recover attorney's fees and other expenses which he incurs as a result of "defendants' forcing him to initiate suit in order to recover the wages and benefits properly owing to him." Complaint, P 13. APL moves to strike this request because section 301, Rothmann's only remaining possible claim, does not authorize an employee to recover attorney's fees. APL also argues that the collective bargaining agreement does not provide for attorney's fees either. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 257, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975) (in the absence of authorizing statute or contractual commitment, a litigant is not entitled to attorney's fees as a component of damages). Although Rothmann is not entitled to attorney's fees, Alyeska at 257, a court may use its equitable powers to award fees to the prevailing party in a maritime action "when the defendant has forced the plaintiff 'to go to court to get what was plainly owed to him.'" Su v. M/V Southern Aster, 978 F.2d 462, 475 (9th Cir. 1992). Since this determination cannot be made until the merits of the case are presented, APL's motion to strike is premature.

CONCLUSION

For the forgoing reasons, the Court holds: (1) APL's motion to strike Rothmann's opposition is DENIED and Rothmann's motion for the court to consider his opposition is GRANTED; (2)(a) Rothmann's claim under 46 U.S.C. § 10313 is DISMISSED; (b) Rothmann's claim for breach of the collective bargaining agreement is DISMISSED WITH LEAVE TO AMEND.

SO ORDERED.

DATED: November 9, 1994

FERN M. SMITH

United States District Judge