47 F. 825 | N.D. Cal. | 1891
The libel in this case is for wages of the seamen and theii transportation home. Objection is first made by the claimant to the court taking j urisdiction of the cause, and, next, it is urged that the libelants deserted the ship before the expiration of their contract of service, and thereby forfeited all claim to wages, and, of course, to transportation. The case is this: The libelants shipped in England in November, 1890, under shipping articles providing for a voyage from “Cardiff to Teneriffe, or any ports or places within the limits of 75 degrees north, and 60 degrees south, latitude, the maximum time to be three years, trading in any rotation, and ending in the united kingdom.” At that time the British law in relation to the plimsol mark was as follows:
“Section 25, Merchant Shipping Act, 1876. Every British ship (except 'ships under 80 tons register, employed solely in the coasting-trade, ships employed solely in fishing, and pleasure yachts) shall be permanently and conspicuously marked with lines of not less than twelve inches in length and one inch in breadth, painted longitudinally on each side amid-ships, or as near ' thereto as practicable, and indicating the position of each deck which is above water. The upper edge of each of these lines shall be level with the upper side of the deck plank next the water-way at the place of marking. The lines shall be white or yellow on a dark ground, or black on a light ground!
“Sec. 26. With respect to the marking of a load-line on British ships, the following provisions shall have effect: (1) The owner of every British ship (except ships under 80 tons register, employed solely in the coasting trade, ships employed solely in fishing, and pleasure yachts) shall, before entering hks ship outwards from any port in the united kingdom for any voyage for which he is required so to enter her, or, if that is not practicable, as soon thereafter as may be, mark upon each of her sides amid-ships, or as near thereto as is practicable, in white or yellow on a dark ground, or in black on a light ground, a circular disk 12 inches in diameter, with a horizontal line 18 inches in length drawn through its center. (2) The center of this disk shall indicate the maximum load-line in salt-water to which the owner intends to load the ship for that voyage. (8) He shall also, upon so entering her, insert in the form of entry delivered to the collector, or other principal officer of customs, a statement in writing of the distance in feet and inches between the center of this disk and the upper edge of each of the lines indicating the position of the ship’s decks which is above that center. (4) If default is made in delivering this statement in the ease of any ship, any officer of customs may refuse to enter the ship outwards. (5) The master of the ship shall enter a copy of this statement in the agreement with the crew before it is signed by any member of the crew, and no superintendent of any mercantile marine office shall proceed with the engagement of the crew until this entry is made. (6) The master of the ship shall also enter a copy of this statement in the official log-book. (7) When a ship has been marked as by this section required, she shall be kept so marked until her next return to a port of discharge in the united kingdom.”
Under this law the load-line was established and approved by the board of trade on the ship Sirius, then known as the “Scandinavia.” The ship sailed for Santa Rosalia, in Mexico, thence to San Diego, and afterwards to Sán Francisco, at which port she secured a charter to take supplies to Chili; the owner then loading the ship one and a half feet deeper than the plimsol mark established at the time the libelants
That the court may, in its discretion, take jurisdiction of the case is not disputed, but it is urged on the part of the claimant that in the present instance such discretion ought not to be exercised in favor of the jurisdiction. “In the absence of treaty stipulations,” said the supreme court in the case of The Belgenland, 114 U. S. 355, 5 Sup. Ct. Rep. 860, “the ease of foreign seamen is undoubtedly a special one, when they sue for wages under a contract which is generally strict in its character, and framed according to the laws of the country to which the ship belongs; framed, also, with a view to secure, in accordance with those laws, the rights and interests of the ship-owners as well as those of master and crew, as well when the ship is abroad as when she is at home. * * * On general principles of comity, admiralty courts of other countries will not interfere between the parties in such cases unless there is special reason for doing so, and will require the foreign consul to be notified, and, though not absolutely bound by, will always pay due respect to, his wishes as to taking jurisdiction.” In the present case the British consul has in writing requested the court to adjudicate the cause. It is urged, however, on behalf of the ship-owner, that the request of the consul is not as convincing evidence of the wishes of his government as an act of its parliament; that, by section 190 of the merchant shipping act of Great Britain of 1854, actions of this kind are forbidden to bo brought in a foreign country, and therefore that, notwithstanding the request of the consul, the court is not justified in taking jurisdiction of the cause on the ground that it is requested to do so by the government to which the ship and seamen owe allegiance. The section cited is as follows:
“Ho seaman who is engaged for a voyage or engagement which is to terminate in the united kingdom shall be entitled to sue in any court abroad for wages, unless he is discharged with such sanction as herein required, and with the written consent of the master, or proves such iil usage on the part of the master, or by his authority, as to warrant reasonable apprehension of danger to the life of such seaman if he were to remain on board.”
It was held in the case of The Lilian M. Vigus, 10 Ben. 385, that the foregoing section of the English act does not preclude seamen from main
It is urged for the claimant that by the terms of the shipping articles the wages of the libelants are to be paid in England. That is true, and they are payable there only, if the contract has not been broken. But it cannot be seriously contended that in the event the seamen should be discharged by the owner without cause in a foreign country, or so ill treated as to justify them in leaving the ship, or in the event of any other breach of the contract on the part of the owner, entitling the seamen to treat it as at an end, the wages of the latter would not be immediately payable. The question the court in this case is asked to decide is whether there was such a breach of the contract on the part of the owner of the ship as justified the seamen in treating it as at an end. The act which it is claimed had this effect was the conceded loading of the ship below the plimsol mark established at the time of the execution of the shipping articles, pursuant to the provisions of the merchant shipping act of 1876. It is contended on behalf of the owner that the load-line so established did not enter into or become a part of the contract with the seamen; that it was “a mere police regulation,” for the violation of which the sole penalty is declared to be a fine not exceeding £100. Such a penalty is prescribed by section 28 of the act of 1876, but it is prescribed as a punishment for the statutory offense therein defined, and
I think the libelants are entitled to their wages, in accordance with the terms of the shipping articles, to May 1st, less such advances as may be shown to have been made to them; and I should also award them the cost of their passage home but for the fact that they all seem from the evidence to have, shortly after leaving the Sirius, found employment aboard other vessels, several of them having shipped for England. Indeed, the British consul testified that there is no trouble for seamen to ship from the port of San Francisco to England, there being all the time a demand for seamen for such voyages, excepting only engineers. But in this case it appears that the engineers also shipped. Under such circumstances, I think no allowance should be made for the passage home of the libelan+s, but each will be allowed $10, as general damages for the breach of the contract, which sum will probably cover the cost of their subsistence from the time of the termination of the contract until they secured other employment.
An order of reference to the commissioner will be entered, directing him to take testimony, and ascertain and report the amounts due the respective libelants under the views abqve expressed, for which, with, costs, a decree will be entered»