September 3, 1931.
Jacob L. Morewitz, of Newport News, Va., for libelant.
John W. Oast, Jr., of Norfolk, Va., for respondents.
In Admiralty. Libel by C.J. Grothe against the motor ship Sharon, her boats, etc., and the Atlantic Refining Company, as owner, and A.B. Causey, as master.
Decree for respondents.
Findings of Fact.
In the above cause the court makes the following findings of fact:
1. That libelant was engaged on shipping articles signed, not before a shipping commissioner, but before the master on June 12, 1930, as third mate on the motor vessel Sharon, owned and operated by the respondent Atlantic Refining Company, and commanded by the respondent A.B. Causey.
2. That said shipping articles described the voyage as follows: "* * * From port of Philadelphia, Pa., to `for three consecutive voyages with master's option to terminate this contract at the end of the first or second voyage, from Philadelphia or Brunswick, Georgia, to one or more Atlantic coastwise ports, and, one or more ports in Mexico and back to the final port of discharge in the United States on the Atlantic coast, North of Cape Hatteras or Brunswick, Georgia.'"
3. That the voyage made pursuant to the shipping articles aforesaid while libelant remained with the vessel was from Philadelphia, Pa., to Atreco, Tex. The Sharon sailed from Philadelphia, Pa., at 5:35 p.m., June 12, 1930, and arrived at Atreco, Tex., 7:15 a.m., June 31, 1930, and having loaded, sailed from Atreco at about 5:15 p.m., June 22, 1930.
4. That said shipping articles contain the following provision as to settlements between ship and crew: "It is further understood and agreed, that any question whatsoever between Master, Consignee, Agent, or Owner of the above-named vessel, and any of the undersigned seamen or mariners, shall be heard and decided by any Shipping Commissioner or Consul, appointed under the authority of the laws of the United States, and that every award so made by him shall be binding upon both parties and shall, in any legal proceedings which may be taken in the matter before any court of justice be deemed conclusive as to the rights of the parties as to such questions or subjects of dispute."
5. That said shipping articles contain the following provisions with reference to discharge:
"It is also agreed that wages are to be paid at the termination of the third voyage, or at the Master's option, at the termination of the first or second voyage, provided however, that if the Master shall terminate this contract at the end of the first or second voyage, then wages are to be paid at the termination of the said first or second voyage. Any officer, or member of the crew, may on behalf of himself, be discharged on request upon twenty-four (24) hours notice to the master, prior to sailing from a U.S. Atlantic Coast Port North of Hatteras or from Brunswick, Georgia, after having made the first voyage."
"It is also agreed that the Master reserves the right to discharge any officer or member of the crew, for neglect of duty, insubordination or drunkenness, prior to sailing of vessel from home port, Brunswick, Georgia, or any coastwise port of call during the period of the contract."
6. That libelant first boarded the Sharon at Philadelphia on June 12, 1930, after the shipping commissioner had signed on all the crew except libelant and two others. Libelant signed on the shipping articles before Captain Causey and thereupon under authority from Captain Causey signed on two other members of the crew.
7. That libelant's wages were fixed by the shipping articles at the rate of $150 a month, and the wages earned by him on the voyage from Philadelphia to Atreco amounted to $45.
8. That on the voyage aforesaid libelant was insubordinate on several occasions but was not disrated, punished, or penalized therefor, and that shortly after the vessel arrived at Atreco on June 21, 1930, libelant duly requested, received, and receipted for in writing, from the Sharon, the sum of $22.50 being one-half of his wages then earned and to which he was entitled pursuant to the provisions of title 46, § 597, USCA, and after receiving said one-half of his wages libelant without receiving any discharge or release from the shipping articles, and just before the time for the vessel to sail from Atreco, took all of his belongings and left the ship without any just cause therefor and with the intention not to return to the ship.
9. That libelant was replaced as third mate by a man named Murphy, who boarded the Sharon at Port Arthur, Natcheze Canal, Tex., and that the expense of making the replacement was $2 for a medical examination and $2 for a launch to carry Murphy to the Sharon. The balance of libelant's wages earned on the voyage to Atreco after payment of $22.50 to libelant and the expense of $4 to replace him was $18.50, which was paid to the United States Shipping Commissioner at Philadelphia by the master or owners of the Sharon. Said sum of $18.50 was declared forfeited for desertion by libelant, and by said Shipping Commissioner was deposited to the deserters' fund in the United States District Court for the Eastern District of Pennsylvania on or about July 15, 1930, pursuant to title 46, § 706, USCA.
10. That on June 21, 1930, Captain Causey, the master of the Sharon, upon learning of libelant's desertion made the following unsigned entry opposite libelant's signature on the shipping articles: "Deserted at Atreco, Tex., June 21,-30."
11. That libelant submitted his claim for the balance of his wages to the Commissioner of Navigation in Washington, D.C., and later appeared before the United States Shipping Commissioner at Philadelphia and verbally submitted his said claim, which commissioner, after investigation of the claim, declared the wages forfeited because of libelant's desertion.
Conclusions of Law.
From the foregoing findings of fact the court has concluded:
1. That the libelant was lawfully engaged upon a coastwise voyage as set forth in the shipping articles, and that the voyage proposed was legally and sufficiently described in the articles.
2. That there was no attempt to disrate libelant during the voyage.
3. That at Atreco, Tex., libelant on June 21, 1930, at his request was paid all the money then due him as wages, as contemplated by section 597, title 46, USCA.
4. That libelant willfully deserted the ship at Atreco, Tex., June 21, 1930.
5. That by his said desertion libelant forfeited the balance of his wages earned to and including June 21, 1930.
6. That respondents have not without sufficient cause refused or neglected to make payment of any part of the wages earned by libelant.
7. That libelant is not entitled to recover any part of the wages or penalty claimed by him in this proceeding.
As numerous issues as to the law applicable to this case have been presented in the arguments and briefs, it is considered desirable briefly to state the court's reasons for its conclusions of law.
Before taking up these issues, attention is called to the fact that it is alleged in the libel that libelant was employed as third officer of the Sharon at $150 per month, and that as such he faithfully performed his duties until the _____ day of June, 1930, "when he was left behind at Atreco," and further that libelant after being paid $22.50, one-half of his wages, was "left behind at Atreco" without being paid or tendered any part of the remainder of the $22.50 which he alleges was then admitted to be due him. Apparently libelant at the time the libel was filed contended that he was left behind at Atreco, but there are no facts alleged tending to show how he happened to be left behind. In the libel no mention is made of any alleged mutual release or discharge of libelant, but in his testimony given in open court and in the argument by his counsel it was urged that libelant was released at Atreco by the mutual consent of himself and respondent the Atlantic Refining Company. This contention is stated in the brief of counsel in the following language: "Libellant was induced to leave the vessel at Atreco and no entry of alleged desertion was made in any log book." The case has been heard and considered upon the latter theory, namely: Libelant's contention that there was a mutual release at Atreco which accounts for his leaving the vessel. While there is conflict as to what actually occurred at Atreco, Tex., on June 21, 1930, the testimony and the circumstances disclosed thereby, considered as a whole, clearly show that libelant after the arrival of the Sharon at Atreco and shortly before that vessel was to sail, on the return voyage, willfully deserted, and that the master did not learn of the desertion until about time for the vessel to sail.
Other points discussed in the arguments and briefs are:
1. Was libelant lawfully engaged? This contention is based upon the fact that libelant did not sign on the articles before a shipping commissioner. On that point the court takes the view that the provisions of the statute (section 563, title 46, USCA) are permissive, not mandatory, in the instant case. That section provides that shipping commissioners "may," not "shall," "ship crews for any vessel," etc., so that signing on before a shipping commissioner is not made compulsory. See The Ella Pierce Thurlow (D.C.) 18 F.2d 675 affirmed Swanson v. Torry (C.C.A. 4th) 25 F.2d 835.
In this case all of the crew with the exception of libelant and two others were signed on before a commissioner on June 11, 1930. The shipping commissioner had left before libelant came aboard on June 12th, so that libelant signed on before the master, Captain Causey, and then at the direction of the master proceeded to sign on two other members.
The court is also of the opinion that the shipping articles in the instant case do set forth "the nature and, as far as practicable, the duration of the intended voyage or engagement, and the port or country at which the voyage is to terminate" with all the certainty and definiteness that is contemplated by the statute (Rev. St. § 4511, section 564, title 46, USCA), and is therefore unable to agree with the further contention of counsel for libelant that the articles because of vagueness and uncertainty as to the contemplated voyage or voyages are in violation of section 578, title 46, and void.
2. It is urged that the attempt to disrate libelant during the voyage worked his discharge before he reached Atreco on June 21st. It is true as set forth in the findings of fact that during the voyage the master of the Sharon, provoked by the insubordination of libelant, made a threat which, had it been carried out, would have disrated libelant. However, the evidence clearly shows that no attempt to carry out the threat was made by the master, and libelant upon reaching Atreco, pursuant to section 597 of title 46, US CA, requested and promptly received $22.50, one-half of his wages then earned, indicating that it was libelant's intention to continue with the ship, and by that time any thought of disrating libelant had apparently passed out of the master's mind.
3. It is also urged that since no entry of the alleged desertion of libelant was made in any logbook as required by section 702 of title 46, USCA, respondent is precluded from making the defense that libelant deserted. The statute, after providing the manner in which any offense enumerated in section 701 of title 46 shall be entered, authenticated and brought to the attention of the alleged deserter, contains the following provisions: "In any subsequent legal proceedings the entries hereinbefore required shall, if practicable, be produced or proved, and in default of such production or proof the court hearing the case may, at its discretion, refuse to receive evidence of the offense."
It will appear from the findings of fact that the entry made by the master opposite libelant's signature thereto does not comply with the statute so that the offense was not logged or authenticated in the manner specified. Since libelant had left the vessel shortly before it sailed from Atreco and his whereabouts were unknown to the master, the latter had no opportunity to furnish libelant with a copy of such entry and to have the same read over to him in accordance with the provisions of the statute. It has been earnestly urged upon the court that because of these facts the defense that libelant deserted at Atreco should be disregarded, but no sound reason tending to the furtherance of substantial justice has been advanced by libelant's counsel why the court in the exercise of the discretion reposed in it by the statute should refuse to receive evidence of libelant's desertion, notwithstanding the irregularity in the entry made by the master. Were this a situation which had been brought about in whole or in part by the arbitrary or unwarranted acts of the master or owner of the Sharon, it would be entirely proper for the court to exclude such evidence. The purpose of the statutes relied on by libelant is to protect seamen against arbitrary and unwarranted acts and oppression by the master, not to aid a seaman in taking advantage of his own wrongdoing. As was said by Judge Groner in The Ella Pierce Thurlow Case (D.C.) 18 F.2d 675, at page 676, with reference to section 596: "The statute is intended to protect the seaman against the arbitrary and unwarranted acts of the master, but where the fault is wholly, as in this case, with the seaman, it would be an injustice to exact the penalty." That decision was approved as to the point discussed by Judge Groner by our Circuit Court of Appeals in Swanson v. Torry, 25 F.2d 835.
Except for the peculiar circumstances of this case, the court would be inclined to allow libelant to recover the balance of his wages of $22.50, but without penalty, as was allowed some of the seamen in the Thurlow Case. But in this case the evidence discloses that the master promptly, after he learned of libelant's desertion, made the entry in question on the shipping articles, which entry, while it does not comply with the letter of the statute, nevertheless clearly shows the offense which was committed by libelant at Atreco on June 21st, to wit, desertion. Furthermore, the master after arriving at Philadelphia on the return voyage promptly paid over the residue of wages to the shipping commissioner there. Had libelant been available, there is nothing in the record to justify a conclusion the master would not promptly have advised him of the charges that had been lodged against him, but due to the libelant's disappearance the master so far as the record discloses did not have that opportunity. Some time after libelant had been advised of the action taken by the master, instead of protesting the irregularity of the record made, he proceeded to submit his claim to the shipping commissioner at Philadelphia and also to the Commissioner of Navigation, and the shipping commissioner after hearing libelant's statement and then the master's statement declared the wages forfeited for desertion. In this connection it is to be noted that libelant did not make any claim before the shipping commissioner until September, 1930, and that the first claim he ever made against respondent was in November, 1930, while the libel in this case was not filed until February 9, 1931, after which apparently for the first time the irregularity of the entry made by the master was called in question.
Under these circumstances the court has reached the conclusion that there has been substantial compliance with the true spirit and intent of section 702 of title 46, USCA, and that there ought to be no recovery by libelant.
Upon presentation of a decree in conformity with the conclusions announced, the same will be entered dismissing the libel.