The Strathearn

• Decision Date: 24 March 1919
• Docket Number: 3140.
• Citation: 256 F. 631
• Parties: THE STRATHEARN. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

256 F. 631

THE STRATHEARN. ^[1]

No. 3140.

United States Court of Appeals, Fifth Circuit.

March 24, 1919

Silas Blake Axtell, of New York City, L. W. Nelson, of St Augustine, Fla., and W. J. & H. W. Waguespack, of New Orleans, La., for appellant.

J. E D. Yonge, of Pensacola, Fla. (W. A. Blount, A. C. Blount Jr., and F. B. Carter, all of Pensacola, Fla., and Ralph Jas M. Bullowa, of New York City, on the brief), for appellee.

Frederic R. Coudert and Howard Thayer Kingsbury, both of New York City, specially appearing on behalf of the British vice consul at Pensacola, Fla., as amicus curiae.

Before WALKER and BATTS, Circuit Judges, and BEVERLY D. EVANS, district judge.

WALKER Circuit Judge.

This is an appeal from a decree dismissing the libel of the appellant, john Dillon, against the British steamship Strathearn, to recover the wages the libelant had earned as a carpenter on that ship prior to the date of his demand from the master of the ship, made two days after its arrival in the port of Pensacola, where the ship delivered cargo, of one-half part of the wages he had earned, which demand was not complied with. The action of the court was the result of its conclusion that the demand was prematurely made, having been made within less than five days after the arrival of the ship at the port where the demand was made, though no such demand had previously been made, and the appellant's service and the ship's voyage had begun several months before. The Strathearn (D.C.) 239 F. 583. The following is the provision of the statute:

'Every seaman on a vessel of the United States shall be entitled to receive on demand from the master of the vessel to which he belongs one-half part of the wages which he shall have then earned 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. 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 wages earned. * * * 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. ' Act March 4, 1915, c. 153, Sec. 4, 38 Stat. 1165 (Comp. St. Sec. 8322).

The provision that 'such demand shall not be made before the expiration of, nor oftener than once in five days,' is not to be given the effect of requiring that five days must have elapsed after the arrival of a ship at a port where it loads or delivers cargo before a demand for half wages can be made with the effect given to it by the statute. Evidently the intention was that such a demand should not have the effect given to it by the statute if it is made within five days 'after the voyage has commenced,' or if made sooner than five days after the making of a previous demand contemplated by the statute. The appellant's demand was not premature.

The decree appealed from is sought to be sustained on other grounds, of which mention will be made:

It is contended that the appellant was not within the terms of the statute, because he was a British subject, who shipped on a British vessel in a British port. There is nothing to indicate that the word 'seaman,' in the clause 'that this section shall apply to seamen on foreign vessels while in harbors of the United States,' etc., was intended to include only seamen of this country, or that that clause was intended to have the same meaning it would have had if, instead of the word 'seamen,' the words 'American seamen' had been used. Another clause in the same sentence, 'and the courts of the United Status shall be open to such seamen for its enforcement,' makes it quite plain that foreign seamen are within the provision. It cannot be supposed that the last-quoted clause would have been inserted, if only seamen of this country had been in contemplation. Legislation was not needed to open the courts of the United States to them. Provisions of the act looking to the abrogation of treaties containing provisions inconsistent with it are indicative of the legislative intention to make such provisions as the one in question applicable to foreign seamen while in the ports of the United...