El Estero

14 F.2d 349 | S.D. Tex. | 1926

HUTCHESON, District Judge.

This is a suit for wages, brought by two seamen to recover their wages and the statutory penalty for nonpayment under section 2, Seamen’s Act 1915 (Comp. St. § 8363b). Justifying, respondent replies that it offered the seamen half wages at the port of Galveston, but that the seamen without right demanded full wages, and upon refusal quit, and are therefore not entitled to recover.

The seamen invoke W. O’Hara v. Luckenbach Steamship Co., 46 S. Ct. 157, 70 L. Ed. 313, construing tke act invoked by tkem. Respondent seeks to avoid tke force of tkat decision by tke claim tkat, in accordance witk tke certificate of tke local inspectors, tke steamship El Estero was required to carry only six seamen, four able seamen and two seamen; tkat wkile, in addition to tke required crew, tkey did kave otker seamen, tkese additional men were needed for and set to do tke necessary work of keeping tke skip in proper skape, painting, cleaning, etc.; that tkey were not needed for navigation; tkat tkey were not taken on as sailors, and were never at any time employed about tke skip for suck purpose; tkat, if tkese additional men bad been divided into watches, tke skip would have been deprived of their services in tke work of keeping tke deck of tke ship in condition, etc. In otker words, the captain says, he would kave lost their labor, and, if he could not kave worked tkem in tke daytime for tke purpose for which he employed tkem, he would not kave employed tkem at all, for tke full services of tke additional men were required in keeping tke skip UP- . ..

. In short, tke respondent’s position is, if tke skip can satisfy tke local inspectors as to her navigation requirements, she may employ as many additional seamen as she wants, without any of tkem having tke protection of tkat part of tke act providing for their division into watches. I think this position unsound, both as contrary to tke letter and tke spirit of tke act. Tke only distinction between this case and O’Hara’s, where tke seven sailors kept at day work only were held to be entitled to their discharge, because not divided into watches, is tke matter of this certificate. It will certainly not do to say tkat, by a device as transparent as this, tke provision for watches may be nullified, unless in tke law which provided for a certificate of inspection there is expressed or implied a limitation of tke operation of tke act under consideration. This I cannot find.

Respondent also asserts tkat at least tke libelants should not recover double wages, because, as is shown by the only testimony in tke ease, tkat of the master, the libelants did not assign as their reason for leaving tke ship tke violation of tke law, but assigned a different reason, their desire to skip to England. I do not think this position sound; for, if it be taken for true that tke seamen, when they quit, did not state as a ground for quitting the violation of tke law, tkat would not avail him, for it is the violation of tke law, and not tke claim of its violation, that gives tke sailors a right to their discharge and their wages. Besides, it is plain here that the master not only failed to comply with the section, but tkat he deliberately undertook to defeat it. Having done so, even though under a mistake of law, he must abide tke consequences of kis mistake.

I therefore conclude that a decree should go for libelants for their month’s wages, and for double wages as penalty, to the date of this trial.¹

1 The statute invoked by libelant is as follows: “Sec. 2. That in all merchant vessels of the United States of more than one hundred tons gross, excepting those navigating rivers, harbors, bays, or sounds exclusively, the sailors shall, while at sea, be divided into at least two, and the firemen, oilers, and water tenders into at least three watches, which shall be kept on duty successively for the performance of ordinary work incident to the sailing and management of the vessel. The seamen shall not be shipped to work alternately in the fireroom and on deck, nor shall those shipped for deck duty be required to work in the fire-room, or vice versa; but these provisions shall not limit either the authority of the master or other officer or the obedience of the seamen when, in the judgment of the master or other officer, the whole or any part of the crew are needed for the maneuvering of the vessel or the performance of work necessary for the safety of the vessel or her cargo, or for the saving of life aboard other vessels in jeopardy, or when in port or at sea from requiring the whole or any part of the crew to participate in the performance of fire, lifeboat, and other drills. While such vessel is in a safe harbor no seaman shall be required to do any unnecessary work on Sundays or the following named days: New Year’s Day, the Fourth of July, Labor Day, Thanksgiving Day, and Christmas Day, but this shall not prevent the dispatch of a vessel on regular schedule or when ready to proceed on her voyage. And at all times while such vessel is in a safo harbor, nine hours, inclusive of the anchor watch, shall constitute a day’s work. Whenever the master of any vessel shall fail to comply with this section, the seamen shall be entitled to discharge from such vessel and to receive the wages earned. But this section shall not apply to fishing or whaling vessels, or yachts.”