297 F. 449 | 2d Cir. | 1924
(after stating the facts as above). We think it unnecessary in this case to pass upon the question as to whether Revised Statutes Ul S. § 4529, applies to foreign vessels when in an American port. The testimony clearly shows that, when the libelants left the vessel without leave, they had not made a demand for half wages, but had demanded that they be paid off and discharged. They were not entitled to be discharged, nor to receive full pay, and the master properly refused to discharge them. Revised Statutes U. S. § 4530, reads as follows:
“Every seaman on a vessel of tbe United States shall be entitled to receive on demand from the master of the vessel to which he belongs one-half part of the balance of his wages earned and remaining unpaid at the time when such demand is made at every port where such vessel, after the voyage has been commenced, shall load or deliver cargo before the voyage is ended, and all stipulations in the contract to the contrary shall be void: Provided, such a demand shall not be made before the expiration of, nor.oftener than once in, five days nor more than once in the same harbor on the same entry. Any failure on the part of the master to comply with this demand shall release the seaman from his contract and he shall be entitled to full payment of wages earned. And when the voyage is ended every such seaman shall be 'entitled to the remainder of the wages which shall be then due him, as provided in section 4529 of the Revised Statutes: Provided further, that notwithstanding any release signed by any seaman under section 4552 of the Revised Statutes any court having jurisdiction may upon good cause shown set aside such release and take such action as justice shall require: And provided further, that this section shall apply to seamen on foreign vessels while in harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement.” 41 Stat. 1006 (Comp. St. Ann. Supp. 1923, § 8322).
Under this section, it is plain that the demand for half wages must be made in good faith and while the seaman is still serving the vessel. It may very well happen that the master would not have sufficient funds, and, while he is presumed to know the law, he is entitled to a reasonable opportunity to be advised with reference thereto and to obtain appropriate, instructions. What is a reasonable time is always determined by the particular facts of the case. If, for the purpose of argument and without deciding the question, it be assumed that section 4529 applies to seamen of a foreign vessel in an American port, a recovery for waiting time penalty cannot be had, where the seaman, prior to the demand for half wages, deserts the vessel, or where the master has not had a reasonable opportunity to comply with the demand.
In expressing this opinion we are merely restating what has heretofore been stated by the courts in several cases. The Belgier (D.
Decree affirmed. ,