92 F. 519 | N.D. Cal. | 1899
The libelant signed articles to serve as a cook on the steamer Alice Blanchard, hound on a voyage from Han Francisco to Clipperton Island, off the coast of Mexico, and thence to Ban Diego, Cal., and on two other voyages between Ban Diego and Clipperton Island, and upon their completion to return to the port of Ban Francisco. The articles provided that he was to present himself on board of the steamer, for service, on June 29, 1898, but at what hour was not stated. The oral evidence tends to show that after the articles were signed he was told by the captain to be on board on the morning of that day in time to cook breakfast. The libelant replied that he might not be able to come so early, and he did not in fact go on board the steamer until between the hours of 12 and 1 o’clock of the day named. The captain was then on shore, and did not return to the steamer until late in the afternoon, when he refused to accept
Section 4511 of the United States Revised Statutes furnishes the rule to be observed in the shipment of crews on vessels bound from the United States to foreign ports not therein excepted, and also for the shipment of crews on vessels engaged in trade between the United States and Mexico (26 Stat. 320), and is applicable to a vessel bound on the voyages named in the shipping articles signed by the libelant. That section provides that a master, before proceeding upon any of the voyages covered by its provisions, must make an agreement in writing with each member of the crew, and that such agreement shall specify, among other matters, “the time at which each seaman is to be on board to begin work.” As before stated, the shipping articles signed by the libelant did not specify the precise hour of the day at which he was to be on board to commence work, — whether on the first minhte of that day, or at the hour of 5, 6, 7, or 8 o’clock a. m., or any other particular hour. Upon the part of the claimant it is argued that the articles should be construed as requiring the libelant to be on board, ready for work, at the usual hour for the commencement of work on the morning of the day named therein; while the libelant insists that in reporting himself ready for service on the day named in the articles, and several hours before the time appointed for the steamer to proceed on her voyage, he substantially complied with his agreement. It is apparent that neither contention is clearly unreasonable, and much can be said in favor of both. In such a case • it is the duty of the court to adopt that construction of the shipping articles which is most favorable to the seaman. Goodrich v. The Domingo, 1 Sawy. 182, Fed. Cas. No. 5,543; Jansen v. The Theodor Heinrich, Crabbe, 226, Fed. Cas. No. 7,215; The Disco, 2 Sawy. 474, Fed. Cas. No. 3,922. The duty of putting the written agreement with seamen in plain and unambiguous language is one which devolves upon the shipowner or master; or, to state the rule in the language of Deady, J., in delivering the opinion in The Disco, above cited: “Shipmasters and owners have ample means and facilities for putting their contracts with seamen in plain language; and so the law, both in Great Britain and America, intends and requires.” If it is the desire of the owner or master to have the seaman to become bound'to go on board to begin work at some particular hour of a day named, the shipping articles should so state. If, through negligence or design, the articles executed do not make such special provision, the court is not authorized by construction to supply such omission, and hold that a seaman Avho reports himself ready for duty on the day named in the articles, and several hours before the time appointed for the departure of the vessel, has forfeited his rights under the articles because he did not appear at an earlier hour of
