Carson v. Gulf Oil Corp., 1736

• Decision Date: 02 September 1960
• Docket Number: No. 1736,1736
• Citation: 123 So.2d 35
• Parties: Thomas S. CARSON, Appellant, v. GULF OIL CORPORATION, a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

Page 35

123 So.2d 35

Thomas S. CARSON, Appellant, v. GULF OIL CORPORATION, a foreign corporation, Appellee.

No. 1736.

District Court of Appeal of Florida, Second District.

Sept. 2, 1960.

Rehearing Denied Sept. 28, 1960.

Margaret E. Deaton, Tampa, for appellant.

James O. Davis, Jr., Fowler, White, Gillen, Humkey & Trenam, Tampa, for appellee.

ALLEN, Chief Judge.

The appellant, as plaintiff in the lower court, filed a complaint against the appellee-defendant for back wages and other expenses which were incurred as a result of the alleged wrongful refusal of the defendant's ship captain to reinstate the plaintiff to his position as oiler aboard defendant's ship. The defendant answered admitting the former employment of defendant but alleged that a proper tender of all amounts due had been made by the defendant to the plaintiff. The defendant also set up the affirmative defense that plaintiff had left the ship without the permission of the master and therefore had forfeited any right to back wages. The case came on for jury trial and at the close of plaintiff's case, the lower court directed a verdict for the defendant and after the motion for new trial was denied, the court entered a final judgment on the verdict in favor of the defendant.

The plaintiff, Thomas S. Carson, was employed as oiler on the defendant's ship, 'Gulf Trade.' The ship was owned by defendant corporation and was engaged in transporting oil between Texas and Florida ports during the year 1958.

In October of 1958, while the ship was in Port Arthur, Texas, Carson received a notice from the Internal Revenue Department ordering him to appear in Tampa on October 22, 1958, for a hearing in regard to his tax returns for 1955, 1956, and 1957. After leaving Port Arthur, the ship headed for Jacksonville, Florida, and two days prior to arrival Carson requested a leave of absence so that he could leave the ship in Jacksonville in order to appear in Tampa. He obtained approval from the Chief Engineer, his department head, and then he presented his request, along with the notice to appear, to the Captain, V. Alvarez. The Captain told Carson that he would prepare a written leave of absence which would be ready by the time the ship docked in Jacksonville.

The ship arrived in Jacksonville on Sunday evening, October 19, 1958. After completing his duties the following morning, Carson went to the Captain's quarters and was given his written leave of absence by the Captain, but since Carson's pay had not been computed, he asked Carson to come back to the ship later that day and told him the pay would be ready at that time. Carson said that would be alright and that he would come back later as his wife was to drive to Jacksonville and meet him that day and take him back to Tampa. (Seamen are paid when they leave the ship on a temporary or permanent leave).

Carson then took his leave of absence slip to the National Maritime Union Office and registered to re-ship out on the ship after its return from the next scheduled port Arthur, Texas, trip. The ship was to leave Jacksonville at 3:00 p. m. that day so Carson returned to the ship at 2:00 p. m. to pick up his pay and his discharge slip. The Captain informed Carson that he had not had a chance to compute the pay but he then directed the radioman to compute it. The Captain then retracted the permission for Carson to leave the ship because he had been unable to obtain a relief or replacement for him. Carson explained that he had to be in Tampa; that his leave of absence was not made contingent upon a replacement being found; that he had already registered with the Union to re-ship; and that he only desired his pay but was not quitting the job.

The Captain then refused to pay Carson unless he would return the leave of absence slip or consider himself to be quitting the job. The Chief Engineer, who had overheard the conversation, told the Captain that the storekeeper was qualified to fill in for Carson during Carson's absence. The Captain refused this suggestion and Carson then went to the Union office to see if they could help him get his pay. The ship left Jacksonville while Carson was gone.

Carson attended the hearing in Tampa and returned to Jacksonville within the week and applied to the Captain for reinstatement aboard the ship. The Captain told Carson that he had been permanently replaced and also refused to pay Carson the back wages.

After the suit was instituted Carson received a check on December 1, 1958, from the defendant corporation covering the back wages due. On the back of this check the following printed clause appears:

'This check is in payment of services and all other claims as set forth in attached statement. Payee's endorsement hereon constitutes acknowledgement of such payment.'

Carson did not cash the check but did introduce it into evidence. The attached statement referred to in the above clause is a breakdown of deductions and pay.

The relevant portion of Title 46 U.S.C.A. § 596, pursuant to which this action was instituted provides:

'The master or owner of any vessel making coasting voyages shall pay to every seaman his wages within two days after the termination of the agreement under which he was shipped, or at the time such seaman is discharged, whichever first happens; * * *. Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days' pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court; but this section shall not apply to masters or owners of any vessel the seamen of which are entitled to share in the profits of the cruise or voyage. This section shall not apply to fishing or whaling vessels or yachts. * * *' (Emphasis supplied.)

Although raised for the first time on appeal, the appellee contends that the above quoted section is not applicable and that Title 46 U.S.C.A. § 544, which in part provides that the provisions of section 596 shall not apply to 'vessels engaged in the coastwise trade,' is applicable as a bar to the present action.

The first question to be decided is whether Carson was employed on a 'vessel making coasting voyages,' and therefore entitled to the penalties prescribed by the statute. In order to determine whether the instant case falls under coasting voyages or under the exemption of coastwise trade we must look to related decisions of the federal courts in an attempt to construe the act in a manner that will best effectuate its purpose. The word 'voyage' may have different meanings under different circumstances, depending on the subject to which it relates or the context of the particular contract or statute in which the term is employed. La Bourgogne, 210 U.S. 95, 135, 28 S.Ct. 664, 52 L.Ed. 973. More specifically, 46 U.S.C.A. § 596 deals with voyages as differentiated from maritime activity confined to a harbor or port, or that does not require going to sea. Pacific Mail Steamship Co. v. Schmidt, 9 Cir., 214 F. 513; 241 U.S. 245, 36 S.Ct. 581, 60 L.Ed. 982. The word 'voyage,' as applied to vessels engaged in foreign and interstate commerce, within the meaning of the maritime law, has been held to be clearly inapplicable to a tug making short trips, generally not from port to port, but from one body of water to another, for the purpose of furnishing motive power to other vessels. Gardner v. The L. N. Danzler, D.C., 177 F.Supp. 736.

In Standard Dredging Co. v. Barnalla, 158 Va. 367, 163 S.E. 367, counsel for the parties had stipulated that at all times mentioned the tug in question was an enrolled vessel of the United States licensed to be employed in carrying on a coasting trade with New York as her home port. The court observed that although at the time the case arose the tug was employed in dredging operations in Hampton Roads, based on the stipulation of counsel and the fact that the tug was a large seagoing tug, the court concluded that the tug and its crew came within the protecting provisions of 46 U.S.C.A. § 596. It is noted in the Standard Dredging case that the stipulation designated the tug's activity as being coasting trade and the court relied on such designation as coming within the term 'coasting voyages' as set forth in 46 U.S.C.A. § 596.

There apparently is little, if any, distinction drawn between the terms coasting voyages and coastwise voyages, but rather the distinction arises because of the type vessel employed and the maritime activity involved in the particular case. In regard to these terms the court in Mahar v. Gartland S. S. Co., Second Court of Appeals, 154 F.2d 621, 622, stated:

'The question, then, is whether the amendment of 1898 had any effect on the provisions of the amendatory act, now 46 U.S.C.A. § 544, as far as the 'lake-going' trade is concerned. It seems quite clear that it did not. A country's 'coast' ordinarily means those of its borders washed by the sea, and our shores on the Great Lakes do not come within this definition. It is obvious that Congress meant to distinguish between 'coastwise' and 'lakegoing' trade; the distinction appears in the proviso to section 12 of the Act of 1872, and again in the amendatory act of 1874. Appellant maintains that Congress intended to abandon this distinction when it used the word 'coasting' in the 1898 amendment instead of 'coastwise', which was used in the previous enactments. However,...