274 F. 1000 | S.D.N.Y. | 1921
(after stating the facts as above). Section 4529 of the Revised Statutes, on which the libelants rely, so far as relevant, provides as follows:
“The master or owner of any vessel making coasting voyages shall pay to every seaman his wages within two days after the termination of the agreement under which he was shipped, or at the time such seaman is discharged, whichever first happens; and in case of vessels making foreign voyages, or from a port on the Atlantic to a port on the Pacific, or vice versa, within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens. * * * Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days’ pay for each and every day during which payment is delayed beyond (he respective periods, which- sum shall be recoverable as wages in any claim made before the court.”
It will be observed that a distinction is made between "coasting” and “foreign” voyages. In the first payment must be made “within two days after the termination of the agreement * * * or at the time the seaman is discharged,” while in the second it is “within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged.” The section is penal, and the right strict! juris. In the case of foreign voyages, therefore, the seaman must be discharged to get the right to double pay for any period of delay. In the case at bar the libelants, except Hanson, were not discharged till they reached New York. In the case of each they were paid in full at the time of discharge. Hence prima facie the section does not ap
Considering the penal character of the cause of action, the libelants have failed to show that the consul refused to discharge them on June 4th. If he did, perhaps it would have been a wrong; and if the master persuaded him to do so, possibly the discharge should date from that day. Even so, their recovery would'only be of four days’ pay; i. e., from June 8th, four days after the discharge, until June 12th, when they were offered pay by the master. So far as I can see, the libel-ants preferred a rest from the tedium of their labors beneath sunny Mediterranean skies to a discharge. Even were it not so, seven have received a month’s bonus, and have given a release which under Revised Statutes, § 4552, is a bar, unless it should be set aside under Revised Statutes, § 4530 (section 8322), for “good cause,” of which there is none. Hanson also signed some kind of release on his discharge on June 26th. The circumstances do not appear, except that the consul would not otherwise have paid him. As to him, the right to four days’ pay is perhaps free from a release; but he'fails because he has not shown that he demanded a discharge on June 4th, for the reasons already given. As his discharge was, so far as appears, quite voluntary, he is not entitled to a month’s bonus under Revised Statutes, § 4581, which expressly excludes such a case.
Libel dismissed, with costs.
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