Petterson v. United States, No. 785

No. 785 | S.D.N.Y. | Mar 14, 1921

LEARNED HAND, District Judge

(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 apply, this being a “foreign voyage.” It is not necessary, therefore, to decide whether or not their agreement had terminated.1

[1,2] The libelants argue that the transactions with the'master and the consul' are the equivalent of a discharge and gave them equal, rights, but the evidence scarcely supports that construction. At the first interview, on May 10th, the master says that they demanded their money and a dis'charge, though the libelants only say that they demanded their money. Both agree that the consul persuaded them to go back, and wait. By no possible theory can this be considered as the equivalent of a discharge. On June 4th they repeated their demand for pay, and though the consul again urged them to wait, they insisted on leaving the ship. It does not certainly appear that they requested their discharge a second time and were refused by the consul, and there is good reason to suppose that they did not so regard their “resignation.” The letter, so far as we have it, merely refused to be longer responsible for the safety of the ship and demanded the right to go ashore. On June 12th, the master was in funds and offered to pay every one who wanted his money. Although he paid off ten of the crew at the time, none of the libelants was included. Besides, on June 26th, Hanson was discharged, apparently with his own consent. On July 3d, the other 7 agreed to an “extension” of the articles and went back on board.

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.

[3] The remainder of the claim is for the difference between the subsistence, agreed in the articles and the shore allowances. 'The “wage scales and working conditions aboard ship” provide for subsistence allowances only “when subsistence is not provided on board,” or “when in port and board is not furnished,” or “when crew is not boarded aboard the vessel.” These men were not sent ashore, but demanded the right to go. The “wage scale” did not apply. There is not the least evidence that they could not have lived on board, if they chose, under the regular union conditions.

[4] In conclusion, I may add that it is quite apparent that the libel-ants were well satisfied with what they got, and that they were not in any way overreached or oppressed. They have been paid in full, have got a bonus, have given acquittances, and made no protest. Seamen are wards of the courts, no doubt, and are protected against their own carelessness. The statutes, especially the revision of 1915, show an increased solicitude for their welfare, which courts have no right to view with jealousy. Still they remain in some measure persons' sui juris, and there is neither justice nor policy in aiding them to catch at penalties, where they have suffered no wrongs. The libelants were not helpless or ignorant victims, but alive to their rights. They were satisfied twice with the bargain they had driven, which left them with no ground for complaint.

Libel dismissed, with costs.

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