The Hougomont

272 F. 881 | 2d Cir. | 1921

HOUGH, Circuit Judge

(after stating the facts as above). As the demand pleaded, as well as all demands sought to be proved by libelants, were made less than five days after arrival in the port of New York, the court below dismissed the libel upon The Italier, supra. Since the ruling in Strathearn, etc., Co. v. Dillon, 252 U. S. 348, 40 Sup. Ct. 350, 64 L. Ed. 607, the reasons given for the decree appealed from are not good, and we are required to consider the facts anew.

The evidence as to what demands were made by crew upon captain, and how and when such demands were advanced, is extraordinarily confused and discordant. The man who ultimately refused to go on with this suit and testified for claimant denied on oath that he had ever made any demand, or that any demand had been made on his behalf; yet it is beyond question that he went ashore and signed the libel herein on January 5, 1$18. The other men say that a demand was made by some spokesman or leader; but there is no agreement as to who that leader was.

Only a few things are clear from the evidence of a majority of the libelants: This sailing ship came in after a long voyage, apparently from Australia; the men had not been ashore, and there had been no tobacco for anybody, from captain to cabin boy, for months; all were exceedingly anxious to get tobacco, to get money, and to get ashore. We believe that demands for money were made at once, and probably on December 29th, but do not believe that any demand for half wages was preferred on that day, much less that (as pleaded) two demands were made. It is believed that the original libelants were provided on December 31st with the paper writing hereinabove described, but we cannot find it as proven that such a paper was ever signed or served.

The fact is believed to be that all of the libelants wanted to leave the ship. In their own speech they wanted “to be paid off”- — i. e., receive all their wages and a discharge — and they were told by the master that he was willing enough to do this, but that the British consul would not permit it. The reason for the men’s staying aboard as they did was plainly that they hoped for a discharge; and it is, we think, a legitimate inference that the master permitted them to remain, hoping that they or some of them would conclude to stay by the ship, and in the meantime he furnished them with money and paid bills contracted by them shore.

[1] The statute authorizing this libel presupposes a reasonable demand (The Pinna, 255 Fed. 642, 167 C. C. A. 18) plainly made." It must be plainly made, in order that the shipmaster may know exactly what is demanded of him; for by the statute, if he refuses half wages, whole wages instantly become due, together with possible damages. Where such important consequences hinge upon'the making of a demand, it is obvious that clearness both in language and in proof is due from those who rely upon it.

[2-4] But there are some facts clearly appearing which defeat the suits of all but 3 libelants and weaken all the evidence upon which reliance must be placed for proving any demand. This libel was not Sled until 8th January, and before that date all but 3 of the libelants had received more than half their wages then due. Of the remaining 3, one admits staying on board the ship long after libel was filed, and voluntarily acting as watchman. As to the remainder, there is no evidence of any special demand by them, or either of them; so that they must depend for proof of demand upon the evidence of those whose conduct has spoken louder than words — not to mention the positive denial of the witnesses for claimant.

[5] In computing the amount of wages due, as to half of which demand may be made under the statute, we accept the ruling in The London, 241 Fed. 863, 154 C. C. A. 565, certiorari having been denied 245 U. S. 652, 38 Sup. Ct. 11, 62 D. Fd. 532. It is understood, as pointed out above, that all these transactions having taken place before June 5, 1920, are unaffected by the statute of that date. We conclude, therefore, that the burden of proving a demand under the statute and for what the statute confers has not been borne by libelants; but, if it had been so borne, all the libelants waived whatever rights accrued from demand by accepting all the benefits of demand before suit brought or by remaining on board as seamen for nearly two weeks after demand, or bv both such acts.

The decree is affirmed, with costs.