78 F. 368 | N.D. Cal. | 1896
This is a libel in rem for balances claimed for seamen’s wages. Libelants shipped before the shipping commissioner at Port Townsend, Wash., on hoard the hark J. D„ Peters, for a voyage from Port Townsend to Port Clarence, Alaska, and hack to San Francisco, via one or more ports on the Pacific coast. The shipping articles were introduced in evidence, and are in the usual form. The answer admits (hat the libelants earned the respective sums as alleged in their libel, but demies that the several balances claimed to be due, after allowing for certain allotments and the cost of slops furnished on the voyage, are correct, it being claimed that a much smaller sum is owing. The burden of proof, therefore, is on the claimants; for when wages are admitted to have been earned, but deductions are claimed for payments on account and other offsets, the burden of proof is on the master to show the payments, etc., by a preponderance of proof. The Fritheoff, 7 Sawy. 58, 14 Fed. 302; The Hunter, 11 Sawy. 426, 47 Fed. 744. As stated, the amounts in dispute relate to the validity of certain allotments paid by the owners, and deducted from the wages of libelants, and also with reference to the charges made by the master for certain articles of wearing apparel furnished from the slop chest to the libelants during the voyage.
All of the libelants, when they were shipped, appear to have represented to the master and the shipping officer at Port Townsend
The purpose of the act of February 18, 1895, was, undoubtedly, to repeal certain sections of the Revised Statutes, imposing penalties and forfeitures upon merchant seamen, so far as the same had been made applicable to seamen engaged in the coastwise trade by the act of August 19, 1890 (26 Stat. 320), and to extend to them the beneficial provisions of certain other sections which are mentioned in the act of February 18, 1895. This is apparent from the text of the sections of the Revised Statutes, made applicable by the later act to the legal status of seamen shipped on coasting voyages. Most of them were enacted for the protection of the sailor, and affix penalties upon the master and owners for a failure to comply with their conditions and requirements. The act is entitled “An act to amend an act entitled ‘An act to amend the laws relative to shipping commissioners,’ approved August nineteenth, eighteen hundred and ninety, and for other purposes,” and, so fax as it is material to the' present inquiry, reads as follows:
“When a crew is shipped by a shipping commissioner l'or any American vessel in the coastwise trade, or the trade between the United States and the dominion of Canada, or New Foundland, or the West Indies, or Mexico, as authorized by*371 section two of an act approved June nineteenth, eighteen hundred and eighty-six, entitled ‘An act to abolish certain fees for official services to American vessels, and to amend the laws relating to shipping commissioners, seamen, and owners of vessels, and for other purposes,’ an agreement shall be made with each seaman engaged as one of such crew in tlie same manner as is provided by sections four thousand live hundred and eleven and four thousand live hundred and twelve of the Revised Statutes, not however including the sixth, seventh and eighth items of section four thousand five hundred and eleven; and such agreement shall be posted as provided in section four thousand five hundred and nineteen.”
It then provides that “such seamen shall be discharged and receive their wages” in accordance with certain other sections, and concludes as follows:
“But in all other respects such shipment of seamen and such shipping agreement shall he regarded as if both shipment and agreement had been entered into between the master of a vessel and a seaman without going before a shipping commissioner.”
The act of June 19, .1890, differed from the present law, as just set forth, in that it made applicable to the coastwise trade certain sections of the Revised Statutes, relating to the agreement that: should he made with each seaman when shipped by a shipping-commissioner, and imposed penalties and forfeitures for the violation of the agreement by the seaman. It also provided that section 4511 of the Revised Statutes should he observed and applied in its entirety, — that is, not omitting the sixth, seventh, and eighth items thereof; nor was there the clause which is inserted at the end of the present law, that “in all other respects such shipment of seamen and such shipping agreement shall be regarded as if both shipment and agreement had been entered into between the master of a vessel and a seaman without going before a shipping commissioner.”
Section 4511 of the Revised Statutes, with items 6, 7, and 8, provided as follows:
“The master of every vessel bound from a port in the United States to any foreign port other than vessels engaged in trade between the United States and the British North American possessions, or the West India Islands, or the republic of Mexico, or of any vessel of the burden of seventy-five tons or upward, bound from a port on the Atlantic to a port on the Pacific, or vice versa, shall, before he proceeds on such voyage, make an agreement, in writing or in print, wilh every seaman whom he carries to sea as one ol‘ the crew, in the manner hereinafter mentioned; and every such agreement shall be, as near as may be, in the form given in the table marked ‘A,’ in the schedule annexed to this title, and shall be dated at the time of the first signature thereof, and shall be signed by the master before any seaman signs the same, and shall contain the following particulars: First. 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. Second. The number and description of the crew, specifying their respective employments. Third. The time at which each seaman is to be on board, to begin work. Fourth. The capacity in which each seaman is to serve. Fifth. The amount of wages which each seaman is to receive. Sixth. A scale of the provisions which are to be furnished to each seaman. Seventh. Any regulations as to conduct on board, and as to fines, short allowance of provisions, or other lawful punishments for misconduct, which may be sanctioned by congress as proper to be adopted, and which the parties agree to adopt. Eighth. Any stipulations in reference to advance and allotment of wages, or other matters not contrary to law.”
It is with the last or eighth item of the above section, which the act of February 18, 1895, provides shall be omitted, that we are
“It shall be lawful for any seaman to stipulate in the shipping agreement for an allotment of all or any portion of the wages which he may earn to his wife, mother, or other relative, or to an original creditor in liquidation of any just debt for board or clothing which he may have contracted prior to engagement, not exceeding ten dollars per month for each month of the time usually required for the voyage for which the seaman has shipped, under such regulations as the secretary of the treasury may prescribe, hut no allotment to any other person shall be lawful.”
This law had been in force for over 10 years, when the act of February 18, 1895, was passed. That act does not expressly repeal the act of 1884, as amended by the act of 1886, relating to allotments. No reference whatever is made to those acts. Whatever of repeal there may therefore be must be by implication. But repeals by implication are not favored. The general rule is that there will be no such repeal if it is possible to reconcile the two acta
“If two statutes can be read together without contradiction or repugnancy or absurdity or unreasonableness, they should be read together, and both will have effect. It is not enough to justify the inference of repeal that the later law is different. It must be contrary to the prior law. It is not sufficient, that the subsequent statute covers some or even all the eases provided for by the former, for it may be merely affirmative, accumulative, or auxiliary. There must be some positive repugnancy; and even then the old law is repealed by implication only to iho extent of the repugnancy. If, by fair and reasonable interpretation, acts which are seemingly incompatible or contradictory may be enforced, and made to operate in harmony and without absurdity, both will be upheld, and the later one will not be regarded as repealing the others by construction or intendment. As laws are presumed to be passed with deliberation, and with a full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable.”
See McCool v. Smith, 1 Black, 459.
There is a further rule of statutory construction, which is important in this case. It is that:
“One statute is not repugnant to another unless they relate to the same subject, and are enacted for the same purpose. When there is a difference in the whole purview of two stafutos apparently relating t.o flic same subject, the former is not repealed.” Suth. St. Const. p. 181, citing Rex v. Downes, 3 Term R. 569; Bowen v. Lease, 5 Hill, 221, 225; U. S. v. Claflin, 97 U. S. 546; U. S. v. Gear, 3 How. 120; Miller v. Edwards, 8 Colo. 528, 9 Pac. 632.
Such being the well-settled rules of statutory construction which should apply, the question arises whether the act of February 18, 1895, providing for the omission of item No. 8 of section 4511 of the Revised Statutes, operates, by implication, to repeal the act of 1884 as amended by the act of 1886, relating to allotments. Tn the first place, do these different acts relate to the same subject, and were they enacted for the same purpose? Clearly not. The purpose of section 4511 of the Revised Statutes was to provide what the shipping articles or agreement should contain, and the section was imperative in its demands that it should state, among other things, “any stipulations in reference to advance and allotment of wages, or other matters not contrary to law.” Obviously, it simply related to the form and contents of the shipping agreement. It did not purport to provide what the law should he with reference to the several particulars required to he stated in the shipping agreement. These particulars or stipulations were, undoubtedly, subject to such laws as existed at that time or might subsequently be passed. The act of 1884, as amended by that of 1886, had, however, a different purpose, and related to a different subject. It did not relate primarily to the form and contents of the shipping agreement, nor did it pretend, to legislate with 'respect to the duties of the shipping commissioner so far ¿s the stipulations in the shipping agreement were concerned. It legislated upon, and was confined specifically to, advances and allotments, the former of which it prohibited absolutely, and the latter it permitted to a limited extent, and subject to certain regulations to he prescribed by the secretary of the treasury. Section 4511, Rev. St., had refer
Furthermore, the act of 1884, as amended by the act of 1886, .practically required that the stipulation as to allotments should be contained in the shipping agreement. We therefore have a legislative enactment, aside from item No. 8 of section 4511, requiring the stipulation as to allotments to be entered in the shipping agreement. Any requirement to that effect in section 4511 was therefore unnecessary and useless. But item No. 8 was not only unnecessary and useless, but it was in conflict with the law respecting advances, as declared in the act of June 26, 1884. That act absolutely prohibited any advances. The provision in item No'. 8 that all stipulations respecting advances should be contained in the shipping agreement was therefore not only useless, but in conflict with the law as subsequently enacted. In brief, the purpose and object of
It is contended, further, by the proctor for libelants, that, if the omission of item So. 8 of section 4511 be given its full effect, it will result that no stipulations can be inserted in the shipping agreement respecting allotments. Such a conclusion does not necessarily follow. Besides, as stated before, it is nowhere provided that a stipulation respecting allotments shall not be entered into, or, if entered into, that it shall be null and void. But, even if such a forced and strained conclusion could be arrived at, there is a saving clause in the act in question, which would permit of stipulations as to allotments. The clause referred to is contained at the end of the act of February 18, 1895, and has been recited before. After providing for the omission of items 6, 7, and 8, it provides:
“But in all other respects such shipment of seamen and such shipping agreement shall be regarded as if both shipment and agreement had been entered into between the master of a vessel and a seaman without going before a shipping commissioner.”
This, in effect, is tantamount to providing that master and seamen may contract for allotments. Of course, this right is subject to such restrictions as congress has seen fit to impose, which, we have seen, are contained in the act of 1884, as amended by the act of 1880. In other words, this clause preserves to master and seamen the right to enter into such contractual relations not otherwise provided for by the sections of the Revised Statutes made applicable to seamen shipping in the coastwise tra.de, and not contrary to law. In fact, when we scrutinize closely the terms of item No. 8 of section 4511 with this clause of the act of February 18, 1895, we will find that the latter was undoubtedly intended also as the substitute for that part of item No. 8 which provides that “any stipulations” “not contrary to law” should be inserted in the shipping agreement.
Counsel for libelants has referred to several expressions of opinion by the secretary of the treasury, made in the course of official communications, which tend to support the view that the act of February 18,1895, in providing for the omission of item No. 8 from section 4511, operates to repeal the acts of 1884 and 1886, which permit allotments. It is claimed that these expressions of opinion are controlling on the court, and the general rule is cited that, “in all cases of ambiguity, the contemporaneous construction, not only of the courts, hut of the departments, and even of the officials whose duty it is to carry the law into effect, is universally held to be controlling.” Schell’s Ex’rs v. Fauche, 138 U. S. 562-572, 11 Sup. Ct. 376. See, also, Railway Co. v. Phelps, 137 U. S. 528-536, 11 Sup. Ct. 168; Merritt v. Cameron, 137 U. S. 542-552, 11 Sup. Ct. 174; The Eclipse, 53 Fed. 273-279; Id., 8 C. C. A. 505, 60 Fed. 105.
It is further claimed that, even if the libelants could lawfully stipulate in their agreement for an allotment, the amount agreed to be paid was in excess of that allowed by the regulations of the secretary of the treasury. Under section 3 of the act of 1886, allotments to original creditors cannot be made to exceed $10 per month for the time usually required for the voyage for which he has shipped, under such regulations as the secretary of the treasury may prescribe. In accordance with the spirit of the act, the secretary of the treasury, on June 21, 1886, issued a schedule of voyages for sailing vessels. See Synopsis of Decisions for 1886, No. 7,594, at page 277. It is therein provided that for coasting voyages, except between Atlantic and Pacific ports, including voyages from first coasting district to Atlantic ports in the dominion of Canada, an allotment not to exceed $5 for each half month shall be paid. This would amount to $10 for a month, as to voyages consuming that length of time. The allotment in the case at bar was $10 a month for the first two months, and $5 additional for the third month, or a sum total of $25, excepting the libelant Peterson, whose total allotment amounted to $20. The voyage, took almost four months. The allotments, therefore, seem to have been properly allowanced, and do not appear to exceed the scheduled amount prescribed by the secretary of the treasury. They should be deducted from libel-ants’ wages.
We now come to the question as to the value of the wearing apparel furnished to most of the libelants by the master during the voyage. It is claimed by libelants that they were practically compelled to procure articles of wearing apparel from the slop chest, and that the captain dictated his own terms. The testimony tends to show that the captain did not disclose to libelants what he intended to charge them for the articles furnished them at the time. It was only when the voyage was completed, and their balances of wages had been calculated and tendered them, that they learned of the prices that the captain had charged them. The captain denies that he overcharged libelants, and states that they procured the articles voluntarily, and with full knowledge of what the price therefor would be. It is, however, unnecessary to enter into details. The question with which we are chiefly concerned is as to the price of the articles supplied. Section 11 of the act of June 26, 1884 (23 Stat. 56), provides that every vessel mentioned in section 4569
William Hogan, seaman, wages earned. $ 97 40
Allotment . $25 00 25 00
Balance due.. $ 72 40
(No slops seem to have been furnished to the above libelant.)
Henry Kroger, seaman, wages earned. $ 97 40
Allotment . $25 00
Slop acct. 18 45 43 45
Balance due... 53 95
Hermann Golowin, seaman, wages earned. $ 97 40
Allotment . $25 00
Slop acct. 20 50 45 50
51 90
B. Peterson, seaman, wages earned. $ 97 40
Allotment . $20 00
Slop acct. 8 65 28 65
Balance due. 68 75
George Backel, seaman, wages earned. $ 97 40
Allotment . $25 00
Slop acct. 18 25 43 25
Balance due. 54 15
William Grosett, seaman, wages earned. $ 97 40
Allotment . $25 00
Slop acct.. 16 50 41 50
55 90
Alexander Holmburg, seaman, wages earned...... $ 97 40
Allotment .. $25 00
Slop acct. 21 45 46 45
Balance due. 50 95
Karl V. Ross, carpenter, wages earned. $136 00
Slop acct., including a charge of $7 for a plow plane . $33 00
Gash advanced in San Francisco. 5 00 38 00
98 00
Henry Venzuela, seaman, wages earned. $ 97 40
Allotment . $25 00
Slop acct. . 18 20 43 20
Balance due 54 20
Total. $560 20
The point is made by. proctor for claimants that libelant Boss is estopped from recovering more than the sum of $56.58, which sum was left with the clerk of the court by the claimants on October 27, 1896. A letter was introduced at the hearing, signed by Boss, and addressed to the master in San Francisco, in which he states, substantially, that he is willing to accept the sum of $56.58 in full payment of all sums due him for services rendered on the bark during the voyage in question, and that, if that sum were paid into court, the suit, so far as his claim was concerned, might be dis
A decree will be entered as indicated in this opinion.