On Petition for Rehearing

An opinion affirming was filed herein on January 27, 1961. Appellants have petitioned for rehearing, contending among other things that we should have dealt on the merits with the class action aspect of this case. As we stated in the opinion of January 27, 1961, class actions were pleaded in the third and fourth counts of the original libel. These counts were dismissed by orders of November 16, 1956, and February 12, 1957. Appellants argued that this was error.

We did not deal on the merits with the initial dismissal of any of the four counts of the libel, holding that libelants did not stand thereon but elected to amend. With regard to counts three and four, in which class actions were sought to be stated, a further explanation is appropriate.

The claims stated in these counts sought recovery for the benefit of a stewards’ department health and welfare trust fund and a stewards’ department pension trust fund. These are common funds of which stewards’ department employees and their families are the sole beneficiaries. The relief sought under counts three and four was to require appellees to contribute to those trust funds a percentage of the additional wages to which members of the class would be entitled under the theory advanced in support of the individual wage claims asserted in the first and second counts of the libel.

The basic premise of the class counts, therefore, is that the four original libel-ants and the 4,000 additional seamen they *125 sought to represent were entitled to additional wages on the theory advanced in counts one and two of the libel. There is no contention that appellees have failed to add to the trust funds the required percentage of such wages as they concede were earned. The quarrel is not over failure to comply with the trust arrangements, but over the question of what wages were earned by individual members of the class. Thus the issue presented is precisely the same under the class counts as under counts one and two, i. e., the alleged right to additional wages.

But except for John Rogers, one of the original libelants whose claim has now been severed from this proceeding, none of the original libelants or the 4,000 other seamen they seek to represent has present standing to establish a claim for such additional wages. The three remaining libelants (other than Rogers) and the 650 seamen they sought to represent in counts one and two do not have such standing because they elected to amend their libel with regard to their claims for wages and did so in a manner which was ineffective. The remainder of the 4,000 seamen sought to be represented in the class counts have never had such standing, since the class counts did not purport to assert wage claims.

Since members of the class have either not asserted wage claims or have not done so effectively, the underlying premise upon which the class counts are based cannot be established. It would be a curious anomaly if these 4,000 seamen, while unable to establish through a class action or otherwise their right to additional wages, could nevertheless require appellees to contribute a percentage of such wages to the trust funds in question. '

For this reason, if for no other, the district court’s order dismissing the class counts must, under the present posture of the case, be sustained.

The petition for rehearing is denied