Alaska SS Co. v. United States, 6842.

• Decision Date: 13 February 1933
• Docket Number: No. 6842.,6842.
• Citation: 63 F.2d 398
• Parties: ALASKA S. S. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

63 F.2d 398 (1933)

ALASKA S. S. CO. v. UNITED STATES.

No. 6842.

Circuit Court of Appeals, Ninth Circuit.

February 13, 1933.

Lawrence Bogle, Cassius E. Gates, Norman M. Littell, and Bogle, Bogle & Gates, all of Seattle, Wash., for appellant.

Anthony Savage, U. S. Atty., and Jeffrey Heiman, Asst. U. S. Atty., both of Seattle, Wash.

Before WILBUR and SAWTELLE, Circuit Judges.

SAWTELLE, Circuit Judge.

This action was brought in the District Court by appellant to recover the cost of transporting from Ketchikan, Alaska, to Seattle, Wash., the crew of the steamship Depere, owned and operated by appellant, which vessel, on November 15, 1929, while en route from Seattle to Ketchikan, was wrecked near Port McArthur, Alaska, where the crew went ashore. The following day, November 16, in response to radio messages from the Depere at the time of the wreck, a United States Coast Guard boat transported the crew of the Depere to Ketchikan, Alaska, where they were landed on November 17, 1929. The United States Deputy Collector of Customs at Ketchikan took charge of the crew of the Depere as destitute seamen and provided them with lodging and sustenance, as required by sections 678 and 679 of title 46, USCA, which are as follows:

"§ 678. Subsistence to Destitute Seamen; Return to United States. It shall be the duty of the consuls and vice consuls, from time to time, to provide for the seamen of the United States, who may be found destitute within their districts, respectively, sufficient subsistence and passages to some port in the United States, in the most reasonable manner, at the expense of the United States, subject to such instructions as the Secretary of State shall give. The seamen shall, if able, be bound to do duty on board the vessels in which they may be transported, according to their several abilities.

"§ 679. Transportation of Destitute Seamen to United States. All masters of vessels of the United States, and bound to some port of the same, are required to take such destitute seamen on board their vessels, at the request of consular officers, and to transport them to the port in the United States to which such vessel may be bound on such terms, not exceeding $10 for each person for voyages of not more than thirty days, and not exceeding $20 for each person for longer voyages, as may be agreed between the master and the consular officer, when the transportation is by a sailing vessel; and said consular officer shall issue certificates for such transportation, which certificates shall be assignable for collection. If any such destitute seaman is so disabled or ill as to be unable to perform duty, the consular officer shall so certify in the certificate of transportation, and such additional compensation shall be paid as the Comptroller General of the United States shall deem proper. Every such master who refuses to receive and transport such seamen on the request or order of such consular officer shall be liable to the United States in a penalty of $100 for each seaman so refused. The certificate of any such consular officer, given under his hand and official seal, shall be presumptive evidence of such refusal in any court of law having jurisdiction for the recovery of the penalty. No master of any vessel shall, however, be obliged to take a greater number than one man to every one hundred tons burden of the vessel on any one voyage or to take any seaman having a contagious disease."

November 20, 1929, the deputy collector of customs issued a shipwrecked seamen's certificate addressed to the master of the steamship Yukon, also owned and operated by appellant, requiring the master of the Yukon to transport the crew of the Depere to the port of Seattle, Wash., and agreeing to compensate appellant for such transportation in a certain amount. The United States deputy collector of customs at Seattle certified to the arrival of the crew of the Depere via the Yukon on November 22, 1929.

Appellant then applied to the Comptroller General of the United States for the compensation stipulated in the shipwrecked seamen's certificate. This claim was rejected on the ground that: "The duty of relieving and transporting the crew of shipwrecked vessels is primarily that of the owner or operator and where this duty has been undertaken the appropriation for the `Relief and Protection of American Seamen' is not available to reimburse the owner or operator for the expense incurred in performing such duty."

This action was then brought to recover said sum, and it was alleged: "That the aforesaid action of the Comptroller General of the United States in refusing to pay the claim of the plaintiff as set forth herein constitutes an arbitrary and wrongful act; that the aforesaid ruling of the Comptroller General represented by the above-quoted letter is an arbitrary and unlawful construction and interpretation of the above-cited statutes 46 USCA §§ 678, 679 and that such construction and interpretation placed upon the said statutes by the Comptroller General is arbitrary and illegal in the following respects, to wit: It violates and contravenes the statutes of the United States expressly allowing compensation to ship-owners transporting shipwrecked seamen to the United States, and making it the duty of the consular officers and commercial agents of the United States, and not of the owners of the...