186 F. 609 | 6th Cir. | 1911
The appellant, whose corporate name prior to 1906 was the Mack Steamship Company, seeks the reversal of the decree awarding the appellee his salary, with interest, as master of one of its steamships for the season of 1905.
In the spring of 1904 the American Association of Masters and Pilots on the Great Rakes struck to enforce certain demands made on the Rake Carriers’ Association, of which the Mack Steamship Company was a member. That company and also the Pittsburgh Steamship Company were each seeking the services of appellee. As the result of a conference held at Cleveland, Ohio, by a representative of the last-named company, a representative of such association, and appellee, and of a telephone communication carried on in his presence by such representatives with the manager of the Mack Steamship Company, the appellee went to Buffalo, N. Y., to accept from that company a two years’ employment as master of the William H. Mack, a prior engagement for a single season’s service as such master having recently been canceled. On boarding the vessel in the Buffalo harbor, he asked for a written contract evidencing his employment for two seasons, whereupon the following instrument was executed and ■ delivered to him by such manager:
“Buffalo, May 27, 1904.
“It is hereby agreed between J. R., Preston and tbe Mack Steamship Company that J. R. Preston is engaged by said company at a salary of $1,980.00 a season for two seasons.
“[Signed] Chas. O. Jenkins, Mgr.” ■
The appellee immediately took command of the vessel, and on the same evening set sail. At the close of the season, about December 29th, he laid the vessel up in the port of Milwaukee, and on reporting at Cleveland was paid what was due him. His uncontradicted evidence is that he was then told by Jenkins that, although he had in the early part of the season caused some trouble in not submitting reports, he had overcome that, and should take charge of the vessel the following year. On January 16, 1905, in anticipation of his own re-election as 'manager at the coming annual meeting of the board of directors, Jenkins wrote to appellee expressing his great respect for him “as a gentleman of splendid principles,” but notifying him that he need not expect reappointment as master. The reasons assigned for this action were the excessive size of appellee’s bills for tugs, provisions, and wages, the stranding of his vessel three times, and his failure to report dock situations, although in this last respect he stated that, in consequence of vigorous instructions, there had been considerable improvement as the season advanced. The appellee conferred with Jenkins at
The defenses are want of authority on the part of Jenkins, who was himself employed as manager from year to year only, to engage the appellee for more than a single season, the existence of a custom, well known to the appellee, to engage masters for a single season only, absence of a ratification of the contract by the company’s board of directors, duress arising out of the serious strike situation in extorting a contract for two seasons, incompeteney, inefficiency, and continual disobedience of orders, on account of which the company was caused great, loss and expense.
His expenditures for towage and provisions were greater than those of the company’s other vessel, the Squire, which was larger than the William IT, Mack. The tug hills were, of course, increased somewhat by standings. However, the price paid for towage service and for a considerable part of the provisions used was that fixed by contracts made by the manager. As the appellee’s vessel carried several cargoes of wheat, while the Squire carried none, his relative cost of towage was necessarily greater on account of the required movement of his vessel to a series of elevators in unloading a single cargo. There was also some expense incurred for tugs to break the ice. When in ports at which the company had no contracts for provisions, he was required to purchase on such terms as he could make. The wages paid were less than those paid for the sailing of the Squire. As reflecting on the cost of towage, provisions, and wages, it is, further noted that the Squire was in commission from only about June 20th until December 10th or 12th. The stranding and striking of the vessel occurred where such accidents are most usual, in shallow water where silt and sand accumulate through deposits from small streams or shifting currents, and through the lowering of the waters of the lakes by winds. In some instances not only he, but the owners of the tugs who were to tow him into the harbors in question, believed lie could safely enter. It is reasonably clear that he did not report all the occasions on which his vessel grounded or struck, but there is no satisfactory proof that his vessel was injured by any such mishaps, and it is conceded that he made protest, in every known instance in which a loss was sustained which constituted the basis of a claim; but neither his failure so to report, nor a mere error of seamanship on his part, is sufficient to work a forfeiture of his wages. The Camilla, Swabay’s Admiralty, Rep. 312. Two collisions, causing some injury to his boat, occurred by other vessels striking his while it was moored to the dock, hut it is not shown that he veas at fault or that the injury was of consequence. His reports as regards his whereabouts and dock situations were not made as frequent!} as ordered, and as regards other matters were somewhat crude and imperfect. There does not appear, however, to have been any substantial loss of time due to his failure to give greater information, or any loss of cargoes or any injury resulting from imperfect accounts or from his approval of a bill for goods which were not deliv
The appellee was not a stranger to Jenkins. He had been a licensed master for 28 years. He had at the time of his employment served in that capacity for eight seasons, and as mate for about ten years. The residue of his time he had worked as a ship carpenter. He had applied to Jenkins for employment for several seasons and produced references as to his skill as a navigator. Two days prior to the execution of the contract Jenkins had solicited his services. He gave the appellee no instructions before the vessel sailed as to the frequency of reporting his whereabouts and doings or of the course to be pursued in transacting the company’s business. Instructions in these respects were imparted later by telegrams and letters, and were not always understood. The appellee was not a master of the highest skill, but he was a conscientious and reasonably efficient servant, and the steamship company had the opportunity of knowing and must have known of his standing as such at the time of his employment. Clear and satisfactory evidence is necessary to sustain the charge of incompetency; the onus probandi being on the shipowner. Lombard S. S. Co. v. Anderson, 134 Fed. 568, 67 C. C. A. 432. The evidence is not of such a character as to justify his discharge.
• The trial court committed no error, and the decree is affirmed.