On Oсtober 30, 1926, libelants, Charles Swanson, Fred Haagensen, John Johnson, Bertil Larson, Bangt Bergren, and A. R. West, shipped on the American schooner Ella Pierce Thurlow, then lying at New York, for a voyage to Hampton Roads, Va., and then to the West Indies and return. They signed shipping articlеs before beginning the voyage, before a United States shipping commissioner at New York, for a voyage “from the port of New Yоrk to Hampton Roads, thence to the West Indies, one or more, and such other ports, and places in any part of the world as the master may direct, and back to a final port of discharge, for a term not exceeding six calendar months.” They were to' he paid $60 per month each. All of the libelants were aliens, except West. The vessel left New York on that day, and arrived at Hamрton Roads on November 4. The loading of her cargo of coal was completed on November 16, and she dropped out into the stream making ready for her destination in the West Indies. Johnson, Swanson, and Haagensen notified the master that they would not proceed, and the master notified Larson, Bergren, and West that he could not take them, on account of their inexperience аnd incompetence, unless the other three men continued on the voyage; they being experienced seamen. Tbis occurred on the night of November 16.
On the morning of November 17 all the *836 libelants and tbe master went before United States Shipping Commissioner F. C. Wiatt at Newport News, Ya. Libelants clаimed that the voyage was completed at Hampton Beads, but were advised by tbe commissioner that they were bound for a voyage to the West Indies, and that they should go on board and carry out their contract. This the libelants refused to do. The master then offered to pay the men оne-half of their earned wages, less “slop chest advances” made to them, and they refused to accept, and he deрosited the sum with the shipping commissioner for them. The libel was filed. November 19, 1926, to recover the full amount of earned wages due plus “waiting time,” under R. S. § 4529 (U. S. C. tit. 46, § 596, U. S. Comp. St. § 8320 [46 USCA § 596]).
The ease was tried on November 29, 1926, and judgment was rendered, awarding libel-ants all of their earned wages, less the “slop chest advances,” and also a penalty of $4 per day to Larson, Bergren, and West from November 17 to November 29, inclusive. The оpinion of the District Court is reported as The Ella Pierce Thurlow,
The shipping articles undoubtedly covered a foreign voyage from New York via Hampton Roads tо the West Indies, and R. S. § 4511 (U. S. C. tit. 46, § 564 [46 USCA § 564; Comp. St. § 8300]) is not applicable to vessels engaged in trade between the United States and the West Indies. U. S. v. The Grace Lothrop,
Libelants contend that the contract was breached on account of alleged advances prior to the beginning of the voyages (U. S. C. tit. 46, § 599 [46 USCA § 599; Comp. St. § 8323]), and contend that nothing should be deducted from their wages for advances so made. The master purchased certain articles of clothing for the libelants, carried them on board the schooner and delivered to each man thе clothing purchased for him, as each was in urgent need of them. The goods were paid for by the owners of the vessel and charged on the ship’s log, along with other items which the libelants did not dispute, to the several men as advances out of the “slop chest.” We do not think this constituted advances, within the meaning of U. S. Code, tit. 46, § 599, and we think it was the same in substance as if furnished from the “slop chest,” and that such sums werе properly deducted from the earned wages due libelants.
Libelants Swanson, Haagensen, and Johnson breached their contrаct and refused to continue the voyage; so they could have been
logged
as desertara by the master. They wore not marked as deserters, and were not treated as such by the master of the schooner. We conclude, on the authority of Hamilton v. U. S. (C. C. A. 4th)
A very vital question is presented with respect to whether these libelants are each entitled to the penalty of $4 рer day after the rendition of the final decree by the District Court on November 29, 1926, to the date the wages were actually paid thеm, December 7, 1926, without prejudice. No appeal was taken by the respondents, and no sufficient cause is shown for a delay in paying the wages on the day they were determined by the court. Since there was no appeal by them, and no cause for the dеlay in payment, we are of the opinion that they were entitled to this penalty of $4 per day each from November 30, 1926, to Deсember 7, 1926, inclusive, and, sub *837 jeet to this modification, the decree of the lower court is affirmed.
Modified and affirmed.
On Petition for Rehearing.
PER CURIAM. The petition for rehearing c-alls our attention to the fact that the opinion erroneously states that libelants signed shipping articles before a United States shipping commissioner. The opinion will accordingly be corrected so as to eliminate this statement. This error in the statement of facts, however, did not affect the conclusion at which we arrived, and the petition for rehearing presents no matters not already fully considered. It is accordingly denied.
Petition denied.