279 F. 687 | 2d Cir. | 1922
(after stating the facts as above). The opinions of the court below may be found in 273 Fed. 304, and in 274 Fed. 374. There are 22 assignments of error. The first of these is that the court found that the libelants were wrongfully discharged, whereas they were in fact deserters. A number of the other errors assigned are serious and' among- them are:
That the court, having rendered an opinion dismissing the libel on May 25, 1921, allowed the libelants at the June term to reopen the case oil June 8th to file an amended libel and to introduce further testimony, and that the court was without power over its decree after the term ir. which it was entered. That the court held that two of the libelants were wrongfully discharged from the vessel, although they were sick ir. the hospital on the date of the alleged discharge. The captain had p-eviously paid the wages due to these two men to the British vice consul and they had been discharged because of their incapacity arising from illness. Nevertheless the wages of these two men are included in the amount of the decree. That the court entered a decree against the stipulators and against the vessel in the sum of $20,235.28, although the stipulation for value was in the sum of $15,000. And that a decree cannot be entered against a stipulator for more than the amount of the bind which he gives, whether he be a claimant or not. That the court granted to each libelant, in addition to his wages, the sum of $350 for transportation back to India, although no proof was submitted at any time of the cost of transportation to India, and the amount was fixed by the court on a statement made in the libelants’ notice of settling the final decree. This item alone amounted to $11,550.
If the court erred in finding that the libelants were wrongfully disc.larged, and should have found that they deserted, it will not be necessary to consider any other assignment of error.'
“It is well settled, however, that an appeal in admiralty from the District Court to the Circuit Court vacates altogether the decree of the District Court, and that the case is tried de novo in the Circuit Court. Yeaton v. United {States, 5 Cranch, 281; Anonymous, 1 Gallison, 22; The Roarer, 1 Blatchford, Í; The Saratoga v. 438 Bales of Cotton, 1 Woods, 75; The DudLUe, 19 Wall, ’.■3; The Charles Morgan, 115 U. S. 69, 75.”
“Whoever engages voluntarily to serve on board a foreign ship necessarily undertakes to be bound by the law of tlio country to which such ship belongs.”
On the trial, formal proof of British law was waived. The attention of the court was called to the British Merchants Shipping Act of 1894. Section 211, of article 1, of that act reads as follows:
“If a seaman or apprentice who is on board ship has desire to make a complaint to a justice of the peace, British c-onsul officer, or officer in charge of one of her majesty's ships, against the master or any of the crew, the master shall, so soon as the services of the ship will permit * * allow the complainant to go ashore or send him ashore in proper custody.” etc.
And section 221 reads as follows;
“If a seaman lawfully engaged, or an apprentice to the sea service, commits any of the following offenses he shall be liable to be punished summarily as follows:
“(a) If he deserts from his ship he shall be guilty of the offense of desertion and bo liable to forfeit all or any part of the effects he leaves on board, and of the wages which he has then earned, and also, if the desertion takes place abroad, of the wages he may earn,in any other ship in which he may bo employed until his next return to the United Kingdom, and to satisfy any excess of wages paid by the master or owner of the ship to any substitute engaged in his place at a higher rate of wages than the rate stipulated to be paid to him; and also, except in the United Kingdom, he shiui be liable to Imprisonment for any period not exceeding twelve weeks with or without hard labor.”
Want of provisions will justify seamen in leaving the ship. They must be supplied with food so long as they remain on board under
It is not necessary for us to review the testimony on the subject, in \ iew of the admission on the record at the trial by the libelant’s counsel that there is nothing in the case except what transpired after the loat reached Brooklyn. The libel as amended, like the original libel, contains no allegation that the men.left the ship because of the failure to supply them with suitable provisions. Indeed, it does not allege that they left the ship for any reason. On the contrary, it is framed upon the sole theory that the libelants were driven from the ship and prevented from returning'by the captain and the officers of the ship. We may say, however, in passing, that in our opinion the evidence shows beyond question that no reason existed for any complaint concerning the food furnished to the men. It was sufficient in quality and in quantity. The evidence to that effect is abundant and overwhelming.
If the man was in fact struck as he claimed, it would not, under 'our law, justify all the libelants in leaving the ship, and no such claim was advanced at the argument. It has been held, in this country, that a seaman is justified in leaving a vessel through fear, induced by-cruel (reatment and threats. Bush v. The Alonzo, Fed. Cas. No. 2,223; Sherwood v. McIntosh, Fed. Cas. No. 12,778; Magee v. The Moss, Fed. Cas. No. 8,944; Coffin v. Weld, Fed. Cas. No. 2,953. But it has been held that a single act of assault and battery, though exceeding the bounds of moderation, will not justify a desertion, unless there be reasonable ground for apprehending that the acts of oppression will be repeated. Steele v. Thacher, Fed. Cas. No. 13,348. And we think that
“I told them that I was sorry to hear that the engineer had struck one of them; that he didn’t have any business to do it, and told them to go back on the ship, and that S Mould com» down to the ship myself and investigate conditions down there and have thorn straightened out; any objections that they had to make, that they would be able to tell me all about them, and that they would be gone into thoroughly and straightened out. They refused to go back to tlio ship.
“Q. What did they say? A. They said they would not go over to the ship under any circumstances. Then I suggested that, if they were not satisfied to leave the matter in my hands or in the captain’s hands, they should go down to the consul’s, and that I would arrange to have the consul send a man down to investigate and straighten the matter out. No; they said they would not go to the consul. So I simply told them there was nothing further that I could do. I didn’t have any authority.
“O. Did you see the captain of the vessel down at your office that day? A. Yes; the captain came in while this was going on, and X suggested to him — -I told him what had passed, and ho told the men to go back to the ship, and that we would come down and straighten it out. They refused to go back to tbe ship.
“Q. Did they say that? A. Yes; they refused to go back to the ship.
“Q. Did anything further take place before the captain? A. tie simply talked to them, and tried to get them to go back; but they would not.
“Q, Did any of them complain, either to you or in your hearing to the captain, that they had been forced off the ship on that day? A. No; as a matter of fact, they told me, they said they had left the ship in a body after this man had been struck on the arm by the engineer.”
He was asked whether the men had complained that they had been forced to leave the ship, and he said they had not. The next day they appeared at the office of the British consul. The claimant’s testimony is that the libelants never thereafter returned to the ship, with the exception of Fazel Ahammed, the serang, who returned on Wednesday morning, April 6th, with three or four colibelants, to aid. him in removing his luggage.
The claims of the libelants as to the cause of their leaving on April 4, 1921, are inconsistent and confused. Both the libel and ametided
When the men, after they left the ship, visited the British consulate,' they saw the British vice consul, who was in charge of the Consulate Shipping Office. He testified to some complaint as to the food, and what the men said about one of the men having been hit by a hammer, End that the captain had said to him that he thought the men wanted more wages, and offered them 100 per cent, increase if they would return, but that they said they would not go back to the ship, or to any ether British ship. Then followed this testimony:
“By the Court: Q. Did they say why they would not go back to the ship? a. No; they gave no season.
“By Mr. Jones: Q. During the second conversation, when the master was present, did any of the men say they had been ordered off the ship by any of the officers of the ship? A. Not to my knowledge.
“Q. You didn’t hear anything like that? A. No.
“Q. Did you order the men to go back to the ship? A. No; I told them they had better go back to the ship, and take their complaints to the master in 1he future. They repeated what they had said before, that they would not go back to the ship, or to any other British ship.”
From the British consul’s office they went immediately to the Seamen’s Service Center, where two members of the bar, connected with one of the leading admiralty firms in New York, who had been called there to advise with them, talked with them. One of the attorneys testified that the men stated to him that they had left the vessel, and that lie' found “that they had left the vessel of their own accord.” He continued:
“We advised them that under the circumstances we considered that they were improperly away from the vessel, and that they should go back to the vessel; that otherwise they would be treated as deserters.
“By Mr. Jones: Q. Did either of these men say anything about: any officers of the ship ordering them off the vessel with their baggage? A. No.
“Q. Was that one of the complaints they made to you through the interpreter? A. No; that was not the complaint.
“Cross-Examined by Mr. Axtell: Q. Did they want you to tell them what ■;o do, or why you were called in? A. We were called in by the Seamen’s Service.
“Q. Your firm is one of the biggest shipowners’ attorneys in the city, isn’t :.t? A. I think it is, yes.
“Q. You advised them that they had no rights in the matter, and they aad better get back on board the ship ? A. That is what I advised them; that is, I advised the Seamen’s Service Center in that way.
“Q. And that was communicated to the men through the interpreter? A. Yes.”
It is noted that they made no complaint to the witness that they had seen ordered off the vessel. But it is said that the men afterwards' con-
“Q. Did yon sea the captain? A. Yes, sir; and he said: ‘T will call the captain.' The captain came out along with the chief engineer, and came right tip to me. I was in front, and (lie Serang was next i<> me. líe liad a revolver in his hand, which he said was loaded, and if I didn’t move from the gangway he was going to shoot me; but I did move from the gangway because I didn’t want to get shot.”
He also stated that the captain was not objecting to him personally, but to the men who were with him. We think he appeared to disadvantage on his cross-examination. However, the testimony of Ahammed, one of the libelants, and the leading man among them, was corroborative of his story in part. It was on this point as follows:
“Q. Well, did you get on board the ship? A. We were standing on the gangway, and the quartermaster consulted the captain of the ship, and the captain came with a revolver and drove us off the ship at the point of the revolver. The chief engineer was there also.”
There is an issue o C fact as to whether the men ever did return to the vessel for duty after leaving the consul’s office on April S, 1921. The great weight of the evidence is they did not do so.
We agree with counsel for the appellants that, if any such extraordinary action on the part of the captain in standing at the head of a gangway and keeping the libelants from coming aboard the ship at the point of a revolver had actually occurred, it certainly would have been mentioned to the proctor for the libelants, and would have been alleged in the original libel. The libel, however, fails to mention it, and this omission is doubly significant, because the witness Henderson testified on cross-examination that he was the man who had the libel verified, and that he read it over and explained it, and interpreted it to. all the men, and that he thought the libel was correct.
The captain testified positively that, after the men left the ship and visited the consulate, they never again reported for work on the ship, and that he logged them as deserters. His testimony is that not one of them asked him to be permitted to go back to the ship. The following is an excerpt from his testimony:
“Q. At any time after these men whose numbers are on the shipping articles as 31 to 73, after they left the vessel, did any of them ask you to come bajk on board the vessel again? A. No, sir; not one. * * *
“Q. Did any of them ever come baok on the vessel, and ask you to come ba 3k? A. No, sir.
“Q. Did you issue any orders to anybody to order them off the vessel? A. At no time — never at any time; never decidedly not. * *
“Q. Did you ever issue any orders to anybody to stop these men from coming back on board the ship? A. At no time; never.
“Q. Did you ever threaten any of these men with bodily harm? A. No; aerer thought of such a thing.
“Q. Did you ever hear any of the officers or members of the crew threaten ;hese men? A. No, sir; never at any time; never.
“Q. The libelants have alleged in their libel and by amendment in their testimony, when they returned from making the complaint to the consul and to the agents of the vessel, that they were beaten and threatened by you and by the officers of the ship. What have you to say about that? A. It is a fa ry tale; no such thing ever happened, or was ever thought of.
“Q. Did you ever compel these men to sleep on the dock, or any of them? A. No.
“Q. Did you ever tell them they couldn’t come back on- the vessel and have food? A. Ño; at no time. * * *
“Q. Did they ask the British consul to permit them to return? A. Never; no; didn’t. * * *
“Q. When they left, did you or any of your subordinates order them to take their clothes with them? A. No. If any one had done so, it would have been as much as their job was worth. * * *
“Q. But that was after they had been denied entrance to the vessel? A They were never denied entrance to the vessel at any time. * * *
“Q. Those who reported the matter to you didn’t report to you that the Serang and the men who came around for admission to the vessel had been forced off, did they? A. There was nothing of the sort. Nothing ever mentioned or said or whispered, or anything else about them leaving in that way — . fo ced off.”
The chief officer of the ship testified as follows:
"Q. Did anybody stop them? A. No.
“Q. Did you hear anybody threatening them? A. No.
“Q. Did you see anybody beating them up? A. -No.
“Q. You didn’t beat them up or threaten them, did you? A. No.
“Cross-examination by Mr. Mahon: Q. Was he forced off the vessel, or ordered to leave, by anybody? A. No.
“Q. Were you people anxious to have them on board? A. Yes.
“Q. And let them depart in peace? A. Yes; didn’t interfere with them at all in any way.
“Q. You are quite certain nobody on board here forced these men off the second time they returned? A. Quite certain; yes.”
i-Q. Did anybody order them off the vessel on that occasion? A. No.
”‘Q. They weren’t forced off that time, were they? A. No.
“Q. Did you see anybody threatening or beating them? A. No.
“Q. It says in the libel they were driven ashore by force of arms by tbe captain and the officers of the ship, and were beaten and threatened? A. Absolutely untrue.”
The second engineer testified as follows:
“Q. Did you hear anybody order them off the vessel? A. No.
“Q. After they went off, did you tell them they couldn’t come back? A. No. “Q. Or hear anybody tell them that? A. No.
“Q. Did they ever ask you to come back on the vessel? A. No. * * *
“Q. So you couldn’t say they weren’t forced off the vessel? A. They weren’t forced off. We tried to keep them on board. * * *
“Q. Did you see anybody order them ashore or hear? A. No. I said to the Serai'g', ‘You had better stop the men going ashore; they may get into trouble.’
“Q. What did ho say? A. He says, ‘The men don’t want to go on the ship.’ ”
Tbe third engineer testified as follows:
“<). At any time, while you were on the vessel, did you ever beat up any Punjab? A. I did not.
‘‘0. Or threaten them? A. I don’t think I ever threatened them; most certainly never touched them. ~ * *
“Q. Did you over order any of them off the ship in New York? A. No.
“Q. After they left the vessel, did you ever tell them they never could come back? A. No.”
The fourth engineer testified as follows:
"Q. Did you see anybody strike the Gillie? A. No.
"Q. Did you hear anybody threaten? A. No.
“Q. Did you ever order any of them off the vessel? A. No.
“Q. Did you ever tell them they couldn’t come back? A. No.”
The fifth engineer, who is the man who was charged with having struck one of the crew with a hammer, testified as follows:
“Q. Did you ever threaten any of them? A. No. * * *
“Q. Did you ever forbid any one to come back? A. No.
“<j. Did you over order any of them off the ship? A. No.”
A. detective by the name of Harper, employed by a detective company, was working at Pier 2, where the ship was tying during the difficulties involved. He was on the gangway at the time when it is claimed die seamen came back to the ship and were ordered off by the captain. He testified as follows:
“Q. You deny that there was any such occurrences as related by these men, of their coming on board that boat, and offering to turn to, and' the captain paying he would put them off with a revolver? A. I haven’t heard any such thing.
“Q. If I were to inform you that one of these men has stated that you are the man, will you deny It still? A. I was the man that was there, but they didn't show up there.”
As to what actually happened, he testified as follows, after stating that none of the crew came up the gangway and that the men involved were all in civilian dress:
*698 “Q. At any time that evening did any body of Hindoos come up the gangway? A. No.
“Q. Were there any on the dock? A. No; not that I could see. * * *
“Q. What happened? A. The first of these three men was a white man, and acted as spokesman, and the other two appeared to be Hindoos, well dressed. He-asked for the captain personally. He said, ‘Is the captain on board?’ and I said, ‘Yes; do you wish to see him?’ And he said, ‘Yes.’ I said, ‘Is it on ship’s business? ’ and he said ‘Yes,’ and I said, ‘Follow me, and I will take you to the captain.’ I took him up to the captain.
“Q. How far away from the gangway is that? A. Quite a little distance. I went up to the captain’s door and opened it, and said, ‘Captain, three men wish to see you on business.’ Then I came around to the deck, and I no soonei got down there when I heard the captain saying loudly, T don’t wish to enter into any argument with you. This is no time to come and see me on business. You had better go ashore.’ I heard him repeat to the men, ‘Go ashore.’ They did come down the stairway.
“Q. To the deck of the ship? A. Yes; from the captain’s room, and the os.ptain by this time had come out of his room and was looking down on the deck. The men stopped to converse, and the captain again said, ‘Go off my ship. I order you to go ashore.’ The white man shouted back to the captain, ‘Don’t speak like that to us. We are not dogs. You are not in England now.’ With that the captain came down and confronted these men, and he said, ‘Did you hear what I said? I ordered you to go oft the ship.’ And the white man speaking said, ‘Captain, don’t speak like that to me again, or I will knock you through the bulkhead.’
“By the Court: Q. Were there no Hindoos on the dock at that time? A. No. But I couldn’t see them from the gangway, but there might have been on the dock. When this fellow said, T will knock you through the bulkhead,’ the captain said, ‘You would,’ and he went back to his room. And I said, ‘You have seen the captain, and have heard what he has to say, and you had better go ashore.’ So they did, and the captain came to the head of the ganguhy and shouted down to these men, ‘You would knock me through the bulkhead, would you? I would like to see you come on board and do it now.’ ”
“By Mr. Jones: Q. When you got back to the gangway, were any of the Hindoos around there? A. No.
“Q. Any in sight? A. No; I couldn’t see any.
“Q. Any on deck? A. None whatsoever.”
No witness was produced by either side to show what the business was which these men came to discuss with the captain. We do not doubt the truthfulness of Harper’s testimony, who seems to us wholly a disinterested and truthful witness.
“I shall not, therefore, attempt any definition of desertion generally, but content myself with the observation that, to constitute desertion in such a case as this, there must be a complete abandonment of duty without jusifieation on tie part of the mariners; and such abandonment must, moreover, be by quit-t.ng the ship,”
“The next morning the crew, it appears, having previously sent Mr. Day, of Cowes, and having received a letter from him, went on shore without leave to advise with that gentleman as to the effect of the articles. With respect to the step so taken by the crew, 1 am of the opinion that it cannot be deemed as desertion; for, whatever may be the true legal aspect of the articles, X entertain a very decided opinion that there was a sufficient degree of obscurity to justify the seamen in endeavoring to obtain information as to the extent of the obligations into which they had entered oil signing the ship’s articles.”
The desertion of a ship by seamen has always been regarded by the maritime law as very serious misconduct. A Hanseatic ordinance of 1380 made it a crime punishable by death, and a later ordinance of 1591 made it punishable by branding, and various early ordinances made it punishable by imprisonment. And even under article 221 of the Merchant Shipping Act of Great Britain of 1894, a seaman on a British ship who deserts is still liable under some circumstances to imprisonment. In view of the serious consequence likely to result, in any event, to these unfortunate and misguided men, even if no imprisonment should follow, we have examined this record with great care; but we have been able to see but one possible conclusion to be drawn therefrom.
It is admitted that the libelants withdrew from the ship on April 4th, and we find upon the evidence that they had no justification for doing so. The evidence convinces us that thereafter they never returned to the ship and resumed their duties, and that they made no attempt to return. They were therefore deserters, and being such under the British Merchant Shipping Act of 1894 (St. 57 & 58 Vict. pt. 2, § 221), they forfeited their claims to wages. See The Nigretia, 255 Fed 56, 166 C. C. A. 384.
The decree of the court below was based solely on the finding that the men were wrongfully discharged. The conclusion which we have reached makes it unnecessary to consider the other errors assigned.
The decree is reversed, and the case remanded to the court below, with instructions to dismiss the libel.