223 F. 455 | S.D. Ala. | 1915
The material facts in this case are few and- simple, and without serious conflict. There is a conflict in the evidence as to some minor questions involved in the case.
The evidence on the part of the libelants was in substance that they
Spottswood in his evidence denied that he‘ used any such language as is attributed to him, and stated that he used no profane language in the matter, and that he did not use such language as “take to 'the woods.” He stated that he did tell them, if they would not or could not do the work, to get off the boat. Spottswood’s denial that he used such language as is attributed to him is satisfactory to the
Spottswood was undoubtedly correct when he said it was all understood, as it appears from the evidence that these men, some o f them, at least, had heretofore been on a like trip or trips, in the same employment and work, and at the same compensation, as admitted by both sides in this case. It also appeared that the libelants, on the trip in question, did .similar work as on the prior trips they had made. It is reasonable to suppose that those of them who had not been on the prior trips had learned from their coworkers what the work to be done was, and what the compensation to be paid was. Indeed, there was no conflict in the evidence as to the work that was done by the libel-ants, and the rate of compensation per day therefor, whether they worked 15, 10, or 5 days. When the libelants were called on by Mr. Spottswood to unload cross-ties from the barge alongside of the steamer onto the steamer, they refused to do so, saying they could not “tote” the cross-ties from the barge onto the steamer. They testified that they said they were too tired; that they had worked all the preceding day, Saturday, and up to 1 or 2 o’clock in the night, and could not “tote” the cross-ties as directed. Spottswood stated that they had worked three or four hours the night before, but in his opinion not later than 10 o’clock. He further testified that, when he ordered libelants to go to work removing the cross-ties from the barge to the steamer, he did not hear them say they were “tired out,” or too tired to “tote” the cross-ties; that they did not say so to him, or that, if they said anything of the kind, he did not so understand it. He further testified that he told them, “If you are not going to work, get off!” He also stated that the men had worked 15 days preceding this trouble.
“The master of tjie boat was justified in discharging deck hands on an Ohio river towboat, but that the deck hands had not incurred a forfeiture of their wages for past services rendered on the trip.”
*458 “A seaman is entitled to recover wages for the time served, although discharged because of fault on his part.” The Sentinel (D. C.) 152 Fed. 564; The Bell of the Coast (D. C.) 56 Fed. 251.
My opinion, further, is that the custom testified to by Captain Quill has no application to the case in hand. The conditions and terms of the contract made in view of the custom constituted said custom a part of the contract, and controlled the rights of the parties. No other custom was proven in this case. Moreover, Spottswood himself stated that he was not familiar with the method that obtained with the river packets in their contracts with their deck hands. A misfortune, called by Spottswood á “mishap,” had overtaken him. He doubtless considered it an emergency. The libelants were there. He requested or ordered them to go aboard the barge, and to transfer the cross-ties ‘from the barge to the steamer as directed. They insisted that they could not “tote” the cross-ties from the barge onto the steamer. After some further talk on the subject, the men still failing to comply with the order to go to work on the barge transferring the cross-ties, Spottswood told them, if they could not or would not do the work, to get off the boat. Shortly thereafter the men left the boat-and never returned.
The learned counsel' for respondent contends that they then became deserters, and thereby forfeited all wages earned for work done for the 15 days prior. He cites the case of The Galina (D. C.) 6 Fed. 927. There can hardly be any doubt that desertion entails a forfeiture of wages. But there may be a wide difference of opinion as to what facts make out a case of desertion. In my opinion the case of The Galina is not applicable to the facts in the case at bar. The meager facts set out in the head note of that case are so unlike the material facts in this case.
“They were legally required to remain and finish the unloading. The chief part of their work was loading and unloading the cargo'. To quit work as they did was to subject the barge to liability of special expenses, or loss of two days’ time.”
The libelants had broken their contract before they had fully perfonnéd their part of it, and the respondent claimed a deduction of a small amount from their wages as his probable actual loss by their breach of the contract.
The Walsh Bros. Case and the case at bar differentiate in two important particulars.
First. The libelants in this case left the boat with the assent of the master, implied by his order or direction to get off the boat. It is true that the order was made in the alternative. The respondent gave the men a choice to do one or the ether of two things which he required and directed them to do. The substance and effect of what he said to them was, “Go to work removing the cross-ties from the barge onto the boat, or get off the boat.” Can it be seriously contended that the submission of this option to the men was not an implied assent that they might do either as they chose. They of course acted voluntarily in making their choice.
Secondly. The libelants in the Walsh Bros. Case had breached their contract expressly made in the hiring, including loading and unloading the brick. At the place of- unloading, and while unloading at New York, the men quit work. While in the case before the court the contract of hiring requiring the men to load the barges at the place of loading up the river, would require them to unload them at the place of delivery, Mobile, but does not provide for unloading them at an intermediate place, onto the steamer having them in tow; nor can the contract by implication be extended to include a legal duty or requirement to do so when the necessity or supposed necessity therefor arose from a cause wholly unexpected, and not contemplated at the time the contract was made, and in the nature of things not implied in it. I do not consider that the libelants broke any contract they were under, or violated any legal duty required of them expressly or impliedly by their contract of hiring. They were directed to do work arising from a “mishap,” or occurrence wholly unexpected, and not contemplated at the time the contract of hiring was made.
Whatever may be thought of an altruistic or moral obligation the men were under to help their employer, if they could, in the conditions then existing, and in his disappointment and supposed trouble under them, the court has no authority to punish the failure to per
From my view of the facts in this case and the law applicable thereto, my judgment is that the libelants are entitled to recover the amounts sued for respectively.
Let a decree be entered accordingly.