The Italier

257 F. 712 | 2d Cir. | 1919

HOUGH, Circuit Judge

(after stating the facts as above). [1] 1. The Italier is a foreign vessel, and libelants shipped elsewhere than in the United States. Therefore, under The Talus, 248 Fed. 670, 160 C. C. A. 570 (affirmed 248 U. S. 185, 39 Sup. Ct. 84, 63 L. Ed. -, December 23, 1918) the court below erred in directing that no credit should be given to the ship in respect of advances made to the libelants beyond the boundaries of the United States.

[2] 2. It seems to be thought (judging- from the tenor of argument in this and similar causes) that the Seamen’s Act of 1915 has abolished the offense of desertion in the mercantile marine. While it is true that arrest for desertion, the bodily return of a deserter to his ship, and generally the holding of a seaman to his shipping contract by physical force, are things of the past, even in respect of foreign vessels so far as the United States is concerned (sections 16-18), desertion is still an offense on American vessels, entailing (inter alia) forfeiture of “all or any part of the wages or emoluments which the [deserter] has then earned” (R. S. § 4596, as amended).

“Desertion” is not defined by any act of Congress. Quite possibly the definition of desertion varies in different countries. This record does not inform us whether Belgium defines desertion in any special way. Although the Belgian law would control, if proven (The Nigretia, 255 Fed. 56, - C. C. A. -), we may, in the absence of such evidence, apply the general maritime law.

[3] The-definition of desertion “in the sense'of the maritime law” is settled, and consists in “a quitting of the ship and her service, not' only without leave and against the duty of the party, but with an intent not again to return to the ship’s duty.” Cloutman v. Tunison, 1 Sumn. 373, Fed. Cas. No. 2,907, where the subsequent cases are collated. Within this definition we have no doubt on the evidence that all the libelants who made demand for half wages deserted before the presentation of such demand.

[4] 3. It seems, also, to be thought that the demand for half wages under R. S. § 4530, as amended, is a ceremony of no moment, and may be made (as it was made in this case) after the seaman leaves his ship (in Judge Story’s phrase) animo dereliquendi. Such is not the case. The seaman’s is a lawful engagement and its propriety is to be judged primarily by the law of the ship’s flag. But Congress has plainly declared that, when foreign vessels are in harbors of the United States, R. S. § 4530, as amended, shall apply to seamen on sucli vessels. Therefore such seamen are entitled to one-half of the wages earned down to the time of demand made, and such demand must be made within the territorial jurisdiction of the United States, and at a port where said vessel “shall load or deliver cargo.”

[5] But no such demand can be made “before the expiration of nor oftener than once in five days.” As seamen on foreign vessels have no rights under this statute until they arrive within a harbor of the United States, it is, we think, evident that the five-day period begins to run upon arrival in such harbor. The intimation to the contrary in The Delagoa (D. C.) 244 Fed. 835, is disapproved.

But, since a deserter may forfeit all his wages, it is also a prerequisite to recovery under the statute that there should be wages due him when he makes demand, and there are no wages due to a deserter.

4. The decision below was therefore wholly erroneous in not finding that those libelants to whom awards were made had either deserted before demand made under the statute, or had never made a demand pursuant to the statute.'

,5. The defense that there was no evidence that New York was for the Italier a port , of either loading or discharging, and that on October 10th five days had not elapsed after arrival in the harbor, is not pleaded, but has been argued. Our view of the point, therefore,, is stated rather for future guidance "than as dispositive of the present cause.

Decree reversed, and cause remanded, with directions to dismiss the libel. '