Burke v. Buttman

4 F. Cas. 740 | D. Mass. | 1867

LOWELL, District Judge.

It is not necessary to decide whether the articles were wholly void, because the voyage was partly performed under them. It cannot for a moment be admitted that the master or owners can take advantage of a defect in the contract to terminate it at pleasure. The obligation is all on one .side; it is the duty of master and owners to see that the voyage is fully and fairly described in writing, and no duty rests upon the seamen in regard to it. They have nothing to do with the matter. These articles must be construed most strongly against the owners, and they may fairly be held to mean that among the ports the master should direct wa,s to be some home port. It cannot be left to a doubtful-interpretation. If the master intended to discharge the sailors at one or more ports of Africa, he should have said so, clearly and explicitly, in writing. As it is, I must hold, and do so without the slightest difficulty, that the men had a right to come home in the vessel in which they went out, and that the master had no right to transfer them to another vessel with different officers, nor to discharge them on the coast unless the schooner was sold there, wrecked, or condemned, in which several cases the statutes provide for one month’s or two months’ wages, or more, according to circumstances. The right which he assumed to discharge, .some at one port, some at another, and still others at a third, is not warranted by the articles. ' It is entirely clear that the libellants were unlawfully discharged and are entitled to their wages up to the time of their return to the United States, unless something is due by way of recoupment or deduction for wages which they might have earned in the mean time.

Upon this point the evidence is that they might have come home directly in the Warren Hallett, and have earned wages all the time. I admit the principle that owners have a right to require diligence even in seamen whom they have wrongfully discharged; and that idleness or a sullen refusal to be employed should not be allowed to swell the •damages. But the answer of the libellants is in this respect satisfactory. Two of them had been improperly put on board the Warren Hallett, and had had a controversy with her master, in which the latter had been in the wrong and had been overruled by the consul. Under these circumstances the libel-lants might well be slow to take service with him again. It was too much to expect of human nature that he should not look with some prejudice, even though it might be unconsciously, upon their future conduct I am of opinion, therefore, that the three libel-lants are entitled to four months’ wages, at the rates mentioned in the shipping articles; and that the two who were , obliged to go on board the Warren Hallett are entitled to damages for their treatment on board of her.

I ought to observe here, that the master of the Ella Franklin does not appear to have intended any wrong to these men, nor to have used any violence; perhaps he did not even threaten any. He was impressed with the idea, familiar to his own mind, that his schooner was not to return. He honestly thought, perhaps, that the very best thing for these sailors to do was to serve on board the bark, a better vessel than his own, more convenient and more seaworthy. He forgot that the sailors had a right to say, as they did say, We have made no such bargain; we choose to stick to you and your schooner.

Looking at the circumstances and the absence of all violence, abuse, and actual personal suffering, except in a spare diet, I shall give to each of these seamen two dollars a day for the time they were actually detained •on board the bark.

It will be seen that my opinion does not turn upon the oral evidence at all. It was admitted, in favor of the seamen, because the circuit court has held that it is admissible for them. It was admitted for the owners merely in rebuttal. It is a dangerous sort of evidence, and one on which I am always reluctant to decide a case. It must not be supposed that if it were fully and ■clearly established by such evidence that the seamen were to be discharged in Africa, that the master would be entitled to discharge them there. The rule of evidence, like the contract itself, is established for the benefit of the ignorant and careless seamen, and for the seamen only. Masters and owners have ample protection in the contract itself, which if properly drawn up and clearly explained to the men will be conclusive. These articles do not fully and fairly warn the men of the rights which the master undertook to exercise. It is upon the articles that this case is decided. Decree for the libellants.